affirmative defense in Massachusetts

2024A party is entitled to a jury instruction on an affirmative defense if the party raises the defense and supports it by "sufficient evidence." Commonwealth v. Cabral, 443 Mass. 171, 179 (2005).

2023While the Commonwealth carries the burden of proving each element of a charged crime, it "has no burden of disproving an affirmative defense unless and until there is evidence supporting such defense." Commonwealth v. Cabral, 443 Mass. 171, 179 (2005).

2025See Gouse, 461 Mass. at 801 5 ("Nothing in the McDonald and Heller decisions has altered or abrogated our jurisprudence regarding the elements of the crime of unlawful possession of a firearm or the allocation of the burdens of production and proof with respect to the affirmative defense of licensure").

2025Gouse, 461 Mass. at 801 ("Nothing in the McDonald and Heller decisions has altered or abrogated our jurisprudence regarding the elements of the crime of unlawful possession of a firearm or the allocation of the burdens of production and proof with respect to the affirmative defense of licensure").

2012The defendant contends that our ruling in Commonwealth v. Jones, 372 Mass. 403, 406 (1977), that the “[a]bsence of a license is not ‘an element of the crime’ ” of unlawful possession of a firearm, and that the “holding of a valid license” is an affirmative defense to that charge, conflicts with an individual’s right to keep and bear arms under the Second Amendment to the United States Constitution, as defined in Heller, supra, and McDonald, supra. He further contends that, in light of those Second Amendment decisions, a “presumption of unlawfulness” based on the mere carrying of a firearm is n

2012In Commonwealth v. Jones, 372 Mass. 403, 406 (1977) (Jones), we concluded that the absence of a license was not an element of the crime under § 10 (a), but that the “holding of a valid license brings the defendant within an exception to the general prohibition against carrying a firearm, and is an affirmative defense.” Id.

2009With this affirmative defense, set forth in Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 356 (1983), the defendant argues that “the plaintiff is barred from recovery because (1) he violated a duty to act reasonably with respect to a product he knew to be defective and dangerous and (2) that conduct was the cause of the injury." Allen v. Chance Mfg.

2006We determine in this case whether a cigarette manufacturer in a wrongful death action predicated on breach of the warranty of merchantability may assert as an affirmative defense that the decedent smoker’s use of cigarettes was “unreasonable.” See Correia v. Firestone Tire and Rubber Co., 388 Mass. 342, 356 (1983) (in warranty liability action, “the user’s negligence does not prevent recovery except when he unreasonably uses a product that he knows to be defective and dangerous”) (Correia defense). 2 Following the death from lung cancer of her husband, Stephen C.

2026See Commonwealth v. Anderson, 445 Mass. 195, 214 (2005) ("statutory exemption for the charge of illegally possessing a firearm . . . is an affirmative defense").

2012In the future, where a defendant charged with the unlawful carrying of a firearm in violation of § 10 (a) possesses evidence that the firearm was manufactured before 1900, the defendant shall provide the Commonwealth with pretrial notice of the affirmative defense of exemption as required by rule 14 (b) (3). 10 See Commonwealth v. Anderson, 445 Mass. 195, 214 (2005) (statutory exemption “is an affirmative defense”); Commonwealth v. Jones, 372 Mass. 403, 407 (1977) (treating firearm licensing exclusion as affirmative defense).

2010In denying the motion for a new trial, the judge declined to decide whether the instruction was an incorrect statement of the law, and instead concluded that because the defendant had not presented any evidence that he was in the Commonwealth between September 9, 1993, and June 20, 2002, he was not, in any event, entitled to an instruction on the statute of limitations. 34 The judge reasoned that insofar as the defense of the statute of limitations is an affirmative defense, see Commonwealth v. Steinberg, 404 Mass. 602, 606 (1989), the defendant had the burden of producing evidence to support

2010We have repeatedly referred to the statute of limitations defense as an affirmative defense, Commonwealth v. Steinberg, supra at 606 , citing Couture v. Commonwealth, 338 Mass. 31, 33 (1958), and have explained with respect generally to affirmative defenses that where asserted, “the defendant takes on a burden of production because the Commonwealth has no burden of disproving an affirmative defense ‘unless and until there is evidence supporting such defense,’ ” Commonwealth v. Cabral, 443 Mass. 171, 179 (2005), quoting Model Penal Code § 1.12(1), (2) (1985).

2024"While most speech is protected from government regulation by the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution, At the defendant's request, the judge instructed the jury 6 that the Commonwealth had the burden of proving "the alleged violation did not arise by accident, unknowingly or through inadvertence." See Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006) ("Accident . . . is treated as if it is an affirmative defense, which, when it negates an essential e

2018Accident is an affirmative defense that the Commonwealth must disprove beyond a reasonable doubt when the issue is "fairly raised." Commonwealth v. Podkowka , 445 Mass. 692 , 699, 840 N.E.2d 476 (2006), quoting Commonwealth v. Palmariello , 392 Mass. 126 , 145, 466 N.E.2d 805 (1984).

2025See Alicea v. Commonwealth, 466 Mass. 228 , 236 n.12 (2013), citing Demoulas v. Demoulas, 428 Mass. 555 , 575 n.16 (1998); Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991), citing 5 C.A.

2023Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991).

2025See, e.g., Commonwealth v. Harris, 481 Mass. 767, 772 (2019) (characterizing licensure as affirmative defense); Commonwealth v. Allen, 474 Mass. 162, 174 (2016) (same); Gouse, 461 Mass. at 803-805 (same); Loadholt, 460 Mass. at 727 (same); Powell, 459 Mass. at 582 (same); Commonwealth v. Colon, 449 Mass. 207, 226 , cert. denied, 552 U.S. 1079 (2007) (same); Commonwealth v. Anderson, 445 Mass. 195, 213-214 (2005) (same); Commonwealth v. Couture, 407 Mass. 178, 181-183 , cert. denied, 498 U.S. 951 (1990) (same); Tuitt, 393 Mass. at 810 (same); Jones, 372 Mass. at 406 (same).

2017See Commonwealth v. Powell , 459 Mass. 572 , 582 (2011) ; Commonwealth v. Gouse , 461 Mass. 787 , 801-802 (2012) ; Commonwealth v. Jefferson , 461 Mass. 821 , 834-835 (2012).

2025Although introduction of documents outside the pleading would 3 Doe v. Roman Catholic Bishop of Springfield, 490 Mass. 373 , 386 (2022), citing Cavanagh v. Cavanagh, 396 Mass. 836, 838 (1986).

2024See Cavanaugh v. Cavanaugh, 396 Mass. 836, 838 (1986) (res judicata); accord, e.g., Longval v. Commissioner of Correction, 448 Mass. 412 , 413 & 418–424 (2007) (qualified immunity from suit under 42 U.S.C. § 1983 ); Epstein v. Seigel, 396 Mass. 278, 279 (1985) (statute of limitations); Padmanabhan v. City of Cambridge, 99 Mass. App. Ct. 332 , 338–342 (2021) (quasi-judicial absolute immunity); State Room, Inc. v. MA-60 State Associates, L.L.C., 84 Mass. App. Ct. 244 , 248–252 (2013) (unreviewability of appraisal of fair market rental value); Rozene v. Sverid, 4 Mass. App. Ct. 461 , 463–464 (197

1997Failure to do so is such a ‘serious misstep’ that such an action must be dismissed when not timely filed, even if the defendants fail to plead the statute of limitations as an affirmative defense.” Pidge, 32 Mass.App.Ct. at 17, 18 . “[A] State cannot apply a shorter time limit, such as the sixty-day period of G.L.c. 249, §4, to a substantive Federal right properly asserted in a State court.” Pidge, 32 Mass.App.Ct. at 19 .

1997Failure to do so is such a ‘serious misstep’ that such an action must be dismissed when not timely filed, even if the defendants fail to plead the statute of limitations as an affirmative defense.” Pidge, 32 Mass.App.Ct. at 17, 18 . “[A] State cannot apply a shorter time limit, such as the sixty-day period of G.L.c. 249, §4, to a substantive Federal right properly asserted in a State court.” Pidge, 32 Mass.App.Ct. at 19 .

2024CT Install next argues that the Tabachniks' claim of negligence fails as a matter of law under 7 Relying on Sharon v. Newton, 437 Mass. 99, 102 (2002), the Tabachniks argue that this argument is waived because CT Install did not specifically raise lack of consideration as an affirmative defense.

2018"It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense." Sharon v. Newton , 437 Mass. 99 , 102, 769 N.E.2d 738 (2002), citing Mass. R.

2012We have today rejected the essential core of the defendant’s argument in Gouse, supra at 801-808, concluding that “[njothing in the McDonald and Heller decisions has altered or abrogated our jurisprudence regarding the elements of the crime of unlawful possession of a firearm or the allocation of the burdens of production and proof with respect to the affirmative defense of licensure.” See Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011).

2012“Nothing in the McDonald and Heller decisions has altered or abrogated our jurisprudence regarding the elements of the crime of unlawful possession of a firearm or the allocation of the burdens of production and proof with respect to the affirmative defense of licensure.” Gouse, supra at 801, citing Commonwealth v. Loadholt, supra at 726-727 . b.

2021L. c. 269, § 10] shall not apply." The defendant's argument fails for the simple reason that to avail himself of an affirmative defense under § 129B, he had the burden to produce at least some evidence that "the sole reason" he did not have a valid FID card was because it had been allowed to lapse. [Note 6] See Commonwealth v. Farley, 64 Mass. App. Ct. 854, 860-863 (2005) (considering analogous affirmative defense under G.

2018"An affirmative defense is defined as a matter which, assuming the charge against the accused to be true, constitutes a defense to it; an 'affirmative defense' does not directly challenge any element of the offense." Commonwealth v. Farley , 64 Mass. App. Ct. 854 , 861, 835 N.E.2d 1159 (2005), quoting from 21 Am.

2015The defendant was entitled to such an instruction if “any view of the evidence would provide support for an affirmative defense.” Commonwealth v. Monico, 373 Mass. 298, 299 (1977).

2015See note 9, supra. In assessing whether a jury instruction was warranted, the question is whether “any view of the evidence would provide support for an affirmative defense.” Commonwealth v. Monico, 373 Mass. at 299 .

2025Guardado I, 491 Mass. at 668, quoting Commonwealth v. Allen, 474 Mass. 162, 174 (2016).

2025See, e.g., Commonwealth v. Harris, 481 Mass. 767, 772 (2019) (characterizing licensure as affirmative defense); Commonwealth v. Allen, 474 Mass. 162, 174 (2016) (same); Gouse, 461 Mass. at 803-805 (same); Loadholt, 460 Mass. at 727 (same); Powell, 459 Mass. at 582 (same); Commonwealth v. Colon, 449 Mass. 207, 226 , cert. denied, 552 U.S. 1079 (2007) (same); Commonwealth v. Anderson, 445 Mass. 195, 213-214 (2005) (same); Commonwealth v. Couture, 407 Mass. 178, 181-183 , cert. denied, 498 U.S. 951 (1990) (same); Tuitt, 393 Mass. at 810 (same); Jones, 372 Mass. at 406 (same).

2024Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984), is inapposite because it involved the affirmative defense of estoppel, not an implied easement.

1996Furthermore, it was concluded by the court that “there is no error in the allowance of an amendment to the pleadings after trial if the issues presented by the amendment were fully and fairly tried.” See also National Medical Care, Inc. & another v. Sheldon Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984) where the affirmative defense of estoppel was not affirmatively pleaded as required by Rule 8(c) but, held nevertheless “even though estoppel is not affirmatively pleaded, if the issue is tried by the express or implied consent of the parties and there is no prejudicial surprise, it is treate

2010We have repeatedly referred to the statute of limitations defense as an affirmative defense, Commonwealth v. Steinberg, supra at 606 , citing Couture v. Commonwealth, 338 Mass. 31, 33 (1958), and have explained with respect generally to affirmative defenses that where asserted, “the defendant takes on a burden of production because the Commonwealth has no burden of disproving an affirmative defense ‘unless and until there is evidence supporting such defense,’ ” Commonwealth v. Cabral, 443 Mass. 171, 179 (2005), quoting Model Penal Code § 1.12(1), (2) (1985).

2010See Commonwealth v. Barrett, 418 Mass. 788, 792 (1994); Commonwealth v. Steinberg, 404 Mass. 602, 606 (1989); Couture v. Commonwealth, 338 Mass. 31, 33 (1958). 22 The Sixth Amendment to the United States Constitution also provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” 23 On learning the defendant’s proper name, the Commonwealth is instructed by G.

2005Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

2005Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

2015Because the existence of a license establishing a third party’s lawful authority to carry a firearm does not fall ‘peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence,’ Commonwealth v. Vives, [ 447 Mass. 537, 540-541 (2006)], quoting Commonwealth v. Cabral, [ 443 Mass. 171, 179 (2005)], it does not constitute an affirmative defense to joint venture possession of a firearm.

2014Ajfirmative defense of honest belief A defendant may raise an honest, yet mistaken, belief as an affirmative defense. 15 See Commonwealth v. Vives, 447 Mass. at 540-541 .

2014See Demoulas v. Demoulas, 428 Mass. 555 , 575 n.16 (1998) (“ [Generally, a failure to plead an affirmative defense results in a waiver and exclusion of the defense from the case.... [T]he purpose of [Mass. R.

2013Ordinarily, “a failure to plead an affirmative defense results in a waiver and exclusion of the defense from the case.” Demoulas v. Demoulas, 428 Mass. 555 , 575 n.16 (1998).

2014See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60, 61, 62 (2d Cir. 1999) (court assumed defendant asserting personal jurisdiction defense in answer, pursuing litigation for four years, then filing motion to dismiss on same grounds was not barred from filing that motion); Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (implying that defendants asserting personal jurisdiction defense in answer could raise that issue in motion to dismiss); Raposo v. Evans, 71 Mass. App. Ct. 379, 382 (2008) (impliedly assuming defendant who raised rule 12 [b] affirmative defense in answer subsequently could

2012Jones, 79 Mass.App.Ct. at 466-67 , quoting Raposo, 71 Mass.App.Ct. at 383 .

1987See Lewis v. Russell, 304 Mass. 41, 44 (1939) ("It is not enough that the defence be suggested or hinted at, or even that the plaintiff be reasonably caused to expect that it will be asserted").

1987See Lewis v. Russell, 304 Mass. 41, 44 (1939) (“It is not enough that the defence be suggested or hinted at, or even that the plaintiff be reasonably caused to expect that it will be asserted”).

1981Assuming without deciding that indemnification is an affirmative defense, "affirmative defenses, even though not appearing on the face of the complaint, may be established upon motion ... for summary judgment when, by affidavits, depositions and admissions, a set of undisputed facts is revealed upon which the moving party is entitled to judgment as a matter of law." Suckow Borax Mines Consol. v. Borax Consol., 185 F.2d 196, 205 (9th Cir.1950), cert. denied, 340 U.S. 943 (1951).

1981Assuming without deciding that indemnification is an affirmative defense, “affirmative defenses, even though not appearing on the face of the complaint, may be established upon motion ... for summary judgment when, by affidavits, depositions and admissions, a set of undisputed facts is revealed upon which the moving party is entitled to judgment as a matter of law.” Suckow Borax Mines Consol, v. Borax Consol., 185 F.2d 196, 205 (9th Cir. 1950), cert, denied, 340 U.S. 943 (1951).

2025Cf. Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 720 (2002); Classic Restaurant Concepts, LLC v. President and Fellows of Harvard College, 104 Mass. App. Ct. 323 , 339 (2024).[1] Judge Squires-Lee has already held that § 20.2 bars Generation Bio from withholding rent even if Centerpoint breached some requirement of the Lease. -------------------------------------------- [1] In 2002, the Supreme Judicial Court “abandon[ed] the common-law rule of independent covenants in commercial leases in favor of the modern rule of mutually dependent covenants as reflected in the Restatement (Second) of

2025Cf. Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 720 (2002); Classic Restaurant Concepts, LLC v. President and Fellows of Harvard College, 104 Mass. App. Ct. 323 , 339 (2024).[1] Judge Squires-Lee has already held that § 20.2 bars Generation Bio from withholding rent even if Centerpoint breached some requirement of the Lease. -------------------------------------------- [1] In 2002, the Supreme Judicial Court “abandon[ed] the common-law rule of independent covenants in commercial leases in favor of the modern rule of mutually dependent covenants as reflected in the Restatement (Second) of