affirmative defense in Utah

2013In addition, the State argues that Hall has failed to demonstrate ineffee-tive assistance of counsel. ¶ 18 "When a criminal defendant requests a jury instruction regarding a particular affirmative defense, the court is obligated to give the instruction if evidence has been presented ... that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies...." State v. Low, 2008 UT 58, ¶ 25 , 192 P.3d 867 (citing State v. Knoll, 712 P.2d 211, 214 (Utah 1985)). "[Tjo preserve an issue involving a jury instruction, the objecting party must make an objection in

2011In order to determine whether Sellers's counsel was ineffective, we first examine the state of Utah's law regarding affirmative defenses. ¶ 15 Utah has "long-standing law . . . concerning the procedural principles that govern when and how the issue of [an affirmative defense] is properly raised and the allocation of the burden of persuasion with respect to that issue." State v. Knoll, 712 P.2d 211, 214 (Utah 1985).

2026And finally, it’s true that, as a general rule, the State must disprove an affirmative defense beyond a reasonable doubt once the defense has been “put into issue.” State v. Low, 2008 UT 58, ¶ 45 , 192 P.3d 867 (quotation simplified). ¶86 Even so, as far as affirmative defenses go, this defense is somewhat atypical.

2026And finally, it’s true that, as a general rule, the State must disprove an affirmative defense beyond a reasonable doubt once the defense has been “put into issue.” State v. Low, 2008 UT 58, ¶ 45 , 192 P.3d 867 (quotation simplified). ¶86 Even so, as far as affirmative defenses go, this defense is somewhat atypical.

2013"When the defendant has reached the threshold to merit self-defense instructions, those instructions must clearly communicate to the jury what the burden of proof is and who carries the burden." Garcia, 2001 UT App 19, ¶ 16 , 18 P.3d 1123 (emphasis added); see also State v. Hansen, 734 P.2d 421, 428-29 (Utah 1986) (plurality opinion) (stating that "[the proper course would be for the court to explicitly state that the defendant has no particular burden of proof regarding an affirmative defense because even when a jury instruction "does not expressly shift the burden of proof to the defendant,"

2001He relies on State v. Torres, 619 P.2d 694 (Utah 1980) to argue that the jury was not adequately instructed about the burden of proof associated with the affirmative defense of self-defense.

2009Defendant further argues that because the evidence could reasonably support his alternative hypothesis, the State necessarily failed to disprove his affirmative defense that he honestly believed either that he had the right to the computer or that Myers would not have objected to Defendant's taking it if he had been present. ¶12 "`It is fundamental that the State carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense once the defense is put into issue.'" State v. Low, 2008 UT 58, ¶ 45 , 192 P.3d 867 (quoting State v.

2009Defendant further argues that because the evidence could reasonably support his alternative hypothesis, the State necessarily failed to disprove his affirmative defense that he honestly believed either that he had the right to the computer or that Myers would not have objected to Defendant's taking it if he had been present. ¶ 12 "'It is fundamental that the State carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense onee the defense is put into issue." State v. Low, 2008 UT 58, ¶ 45 , 192 P.3d 867 (quoting State v.

1986“Mitigation of damages is an affirmative defense.” Pratt v. Board of Education, Utah, 564 P.2d 294, 298 (1977), aff'd on rehearing, 569 P.2d 1112 (1977).

1986"Mitigation of damages is an affirmative defense." Pratt v. Board of Education, Utah, 564 P.2d 294, 298 (1977), aff'd on rehearing, 569 P.2d 1112 (1977).

2022Id. ¶ 45 (cleaned up); see also State v. Garcia, 2001 UT App 19, ¶¶ 1, 16 , 18 P.3d 1123 (identifying self-defense as an affirmative defense); State v. Drej, 2010 UT 35, ¶ 15 , 233 P.3d 476 (“The Utah rule requires that the prosecution disprove the existence of affirmative defenses beyond a reasonable doubt once the defendant has produced some evidence of the defense.” (cleaned up)). ¶15 Cabututan contends that the State failed to present sufficient evidence to overcome his assertion of perfect self- defense and that, accordingly, the trial court erred in denying his motion for a directed verd

2022Id. ¶ 45 (cleaned up); see also State v. Garcia, 2001 UT App 19, ¶¶ 1, 16 , 18 P.3d 1123 (identifying self-defense as an affirmative defense); State v. Drej, 2010 UT 35, ¶ 15 , 233 P.3d 476 (“The Utah rule requires that the prosecution disprove the existence of affirmative defenses beyond a reasonable doubt once the defendant has produced some evidence of the defense.” (cleaned up)). ¶15 Cabututan contends that the State failed to present sufficient evidence to overcome his assertion of perfect self- defense and that, accordingly, the trial court erred in denying his motion for a directed verd

2018See, e.g. , Seale v. Gowans, 923 P.2d 1361 , 1363 (Utah 1996) (stating that defendants have the burden of proof with respect to affirmative defenses); Messick v. PHD Trucking Serv., Inc. , 615 P.2d 1276 , 1277 (Utah 1980) ("Accord and satisfaction is an affirmative defense and requires the party alleging it to meet the burden of proof as to every necessary element."). ¶ 61 Here, the GRAMA statute does not contain any language indicating that the burden of proof should be assigned to the non-moving party.

2011See generally Seale v. Gowans, 923 P.2d 1361, 1363 (Utah 1996) (describing the statute of limitations as an affirmative defense and explaining that, "[a]s with any affirmative defense, defendants have the burden of proving every element necessary to establish that the statute of limitations bars [the plaintiff']s claim").

1982Blackham v. Snelgrove, 3 Utah 2d 157, 160 , 280 P.2d 453, 455 (1955), quoted this same language and also referred approvingly to other authorities, as follows: Thus, it can very often be found stated in these cases that a complaint is required only to “ * * * give the opposing party fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.” The leading statement of these pleading principles in the context of an affirmative defense is Justice Crockett’s much-cited opinion for the Court in Cheney v. Rucker, 14 Utah 2d 205, 211 , 381

1982Blackham v. Snelgrove, 3 Utah 2d 157, 160 , 280 P.2d 453, 455 (1955), quoted this same language and also referred approvingly to other authorities, as follows: Thus, it can very often be found stated in these cases that a complaint is required only to “ * * * give the opposing party fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.” The leading statement of these pleading principles in the context of an affirmative defense is Justice Crockett’s much-cited opinion for the Court in Cheney v. Rucker, 14 Utah 2d 205, 211 , 381

2026A court is thus “obligated to give the instruction if evidence has been presented—either by the prosecution or by the defendant—that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies to the 20240307-CA 9 2026 UT App 64 State v. Young defendant.” State v. Johnson, 2025 UT App 13, ¶ 24 , 564 P.3d 519 (quotation simplified), cert. denied, 574 P.3d 520 (Utah 2025); see also State v. Farmer, 2025 UT App 57, ¶ 41 , 569 P.3d 267 (same), cert. denied, 574 P.3d 522 (Utah 2025).

2026A court is thus “obligated to give the instruction if evidence has been presented—either by the prosecution or by the defendant—that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies to the 20240307-CA 9 2026 UT App 64 State v. Young defendant.” State v. Johnson, 2025 UT App 13, ¶ 24 , 564 P.3d 519 (quotation simplified), cert. denied, 574 P.3d 520 (Utah 2025); see also State v. Farmer, 2025 UT App 57, ¶ 41 , 569 P.3d 267 (same), cert. denied, 574 P.3d 522 (Utah 2025).

2026See Staker v. Huntington Cleveland Irrigation Co., 664 P.2d 1188, 1190 (Utah 1983) (“The statute of limitations defense must be pleaded as an affirmative defense in a responsive pleading, or it is waived . . . .” (cleaned up)); State v. Jackson, 2011 UT App 318, ¶ 22 , 263 P.3d 540 (holding that “a statute of limitations defense is not jurisdictional and that it can be waived” (cleaned up)); James v. Galetka, 965 P.2d 567, 571 (Utah Ct. App. 1998) (“In civil cases, a statute of limitations must be pleaded as an affirmative defense, or it is waived.” (cleaned up)). ¶28 Because we previously aff

2011The State also contends that because the decision relies on the "well-reasoned analysis provided in Conerly v. State, 607 So.2d 1153 (Miss.1992)," see James, 965 P.2d at 572 , and Conerly concluded that a criminal statute of limitations is an affirmative defense, see Con-erly, 607 $o.2d at 1158, James must stand for the proposition that, like other such defenses, a criminal statute of limitations defense is forfeited if not raised at trial.

2026Id. § 76-1-502; see also Bess, 2019 UT 70 , ¶¶ 33–34 (concluding that self-defense is an affirmative defense, not an element of a crime, and the State need not disprove it in its case in chief at trial). ¶46 For these reasons, we interpret the Statute to require a defendant to make a prima facie claim of justification at a pretrial justification hearing by presenting evidence that, if believed, would be legally sufficient to satisfy each element of the defendant’s justification claim.

2025Id. § 76-1-502; see also Bess, 2019 UT 70 , ¶¶ 33–34 (concluding that self-defense is an affirmative defense, not an element of a crime, and the State need not disprove it in its case in chief at trial). ¶46 For these reasons, we interpret the Statute to require a defendant to make a prima facie claim of justification at a pretrial justification hearing by presenting evidence that, if believed, would be legally sufficient to satisfy each element of the defendant’s justification claim.

2025But the district court summarily dealt with other defenses by stating that because it “found that UPEPA does not apply to Defendant’s statements and, based on the evidence before this [c]ourt, it is reasonable to conclude that the same result would be reached for the other privileges alleged in the Defendant’s answer.” ¶78 Krause argues that the district court erred when it held that Mackey need not establish a prima facie case that Krause’s statements are not subject to privilege to survive a UPEPA motion. ¶79 We have, somewhat confusingly, said at times that a plaintiff must plead lack of pr

2025In Brehany, we held that a defamation plaintiff’s failure to anticipate an affirmative defense in her complaint did not bar her from later overcoming that defense when raised in a motion for a directed verdict at trial. 812 P.2d at 59 . ¶126 After Nordstrom fired Brehany and two other employees, the former employees sued Nordstrom for wrongful discharge, breach of contract of employment, intentional infliction of emotional distress, and defamation.

2013"When the defendant has reached the threshold to merit self-defense instructions, those instructions must clearly communicate to the jury what the burden of proof is and who carries the burden." Garcia, 2001 UT App 19, ¶ 16 , 18 P.3d 1123 (emphasis added); see also State v. Hansen, 734 P.2d 421, 428-29 (Utah 1986) (plurality opinion) (stating that "[the proper course would be for the court to explicitly state that the defendant has no particular burden of proof regarding an affirmative defense because even when a jury instruction "does not expressly shift the burden of proof to the defendant,"

1993Dunn cites State v. Hansen, 734 P.2d 421, 429 (Utah 1986), for the proposition that failure to instruct the jury of the prosecution’s burden of proof on an affirmative defense is error.

2005See Utah Code Ann. § 76-2-402 (2003); State v. Starks, 627 P.2d 88, 92 (Utah 1981). ¶ 48 The line of federal Supreme Court cases since City of Lafayette indicates that the municipality exemption is regarded as an affirmative defense.

1990Utah has unambiguously adopted the position that “a defendant does not bear the burden of persuasion in presenting an affirmative defense.” State v. Starks, 627 P.2d 88, 92 (Utah 1981).

2003See, e.g., Nelson, 919 P.2d at 574 ("Immunity is an affirmative defense which must be proved by the defendant."). [13] Sandberg also argues that, "to the extent that the Governmental Immunity Act bars [his] claim[,] the Act violates [the Open Courts provision] of the Utah Constitution." In light of our disposition, we do not reach this issue. [1] In his affidavit, Jara attested that the plans "showed a pit with no barriers such as chains or poles." In his deposition, Stanford testified that the Council "signed off" on the plans, "so in theory they signed off to do this without a chain or raili

2003See, e.g., Nelson, 919 P.2d at 574 ('Immunity is an affirmative defense which must be proved by the defendant."). .

2025See Rivera, 2019 UT App 27, ¶ 26 ; see also State v. Campos, 2013 UT App 213, ¶ 41 , 309 P.3d 1160 (explaining that after a defendant “produce[s] enough evidence to raise a reasonable basis for the affirmative defense,” “the burden shifts to the State to prove to the jury . . . that the defense lacks merit” (quotation simplified)), cert. denied, 320 P.2d 676 (Utah 2014). ¶29 Applying the correct standard, it is readily apparent that Johnson was at least entitled to an instruction on imperfect self- defense because the evidence, when viewed “in the light most favorable to the defense,” State v.

2025See Rivera, 2019 UT App 27, ¶ 26 ; see also State v. Campos, 2013 UT App 213, ¶ 41 , 309 P.3d 1160 (explaining that after a defendant “produce[s] enough evidence to raise a reasonable basis for the affirmative defense,” “the burden shifts to the State to prove to the jury . . . that the defense lacks merit” (quotation simplified)), cert. denied, 320 P.2d 676 (Utah 2014). ¶29 Applying the correct standard, it is readily apparent that Johnson was at least entitled to an instruction on imperfect self- defense because the evidence, when viewed “in the light most favorable to the defense,” State v.

2019But Conner has not directed us to any authority that would require a defendant to establish an affirmative defense prior to trial, although doing so by means of a dispositive motion would surely be more efficient and, in this case, may have obviated the need for discovery and trial. 9 The affirmative defense of governmental immunity, in particular, "conceptually arises subsequent to the question of whether there is tort liability in the first instance." Ferree v. State , 784 P.2d 149 , 153 (Utah 1989), overruled on other grounds by Scott v. Universal Sales, Inc. , 2015 UT 64 , 356 P.3d 1172 .

2012Because governmental immunity "is an affirmative defense and conceptually arises subsequent to the question of whether there is tort liability in the first instance," see Ferree, 784 P.2d at 153 , the "proper mode of analysis is to first consider whether there is a legal theory upon which suit can be brought ... before considering the separate and independent questions of whether the [entity] is immune." Rollins v. Petersen, 818 P.2d 1156 , 1168 n. 3 (Utah 1991); see also Ledfors v. Emery Cnty.

2022Id. ¶ 45 (cleaned up); see also State v. Garcia, 2001 UT App 19, ¶¶ 1, 16 , 18 P.3d 1123 (identifying self-defense as an affirmative defense); State v. Drej, 2010 UT 35, ¶ 15 , 233 P.3d 476 (“The Utah rule requires that the prosecution disprove the existence of affirmative defenses beyond a reasonable doubt once the defendant has produced some evidence of the defense.” (cleaned up)). ¶15 Cabututan contends that the State failed to present sufficient evidence to overcome his assertion of perfect self- defense and that, accordingly, the trial court erred in denying his motion for a directed verd

2022Id. ¶ 45 (cleaned up); see also State v. Garcia, 2001 UT App 19, ¶¶ 1, 16 , 18 P.3d 1123 (identifying self-defense as an affirmative defense); State v. Drej, 2010 UT 35, ¶ 15 , 233 P.3d 476 (“The Utah rule requires that the prosecution disprove the existence of affirmative defenses beyond a reasonable doubt once the defendant has produced some evidence of the defense.” (cleaned up)). ¶15 Cabututan contends that the State failed to present sufficient evidence to overcome his assertion of perfect self- defense and that, accordingly, the trial court erred in denying his motion for a directed verd

2026See Staker v. Huntington Cleveland Irrigation Co., 664 P.2d 1188, 1190 (Utah 1983) (“The statute of limitations defense must be pleaded as an affirmative defense in a responsive pleading, or it is waived . . . .” (cleaned up)); State v. Jackson, 2011 UT App 318, ¶ 22 , 263 P.3d 540 (holding that “a statute of limitations defense is not jurisdictional and that it can be waived” (cleaned up)); James v. Galetka, 965 P.2d 567, 571 (Utah Ct. App. 1998) (“In civil cases, a statute of limitations must be pleaded as an affirmative defense, or it is waived.” (cleaned up)). ¶28 Because we previously aff

2005Co., 664 P.2d 1188, 1190 (Utah 1983) ("The statute of limitations must be pleaded as an affirmative defense in a responsive pleading or it is waived.").

2026See, e.g., State v. Reece, 2015 UT 45, ¶ 40 , 349 P.3d 712 (concluding that a district court’s error in denying a requested lesser-included-offense instruction was harmless because “there was overwhelming evidence” against the defendant and there was no reasonable likelihood that the jury would have acquitted, so this court’s “confidence in the verdict [was] not undermined”). 20240307-CA 18 2026 UT App 64 State v. Young verdict if the pivotal issue at trial was credibility of the witnesses and the errors went to that central issue.” Id. ¶43 In Johnson, we held that a defendant was prejudiced b

2026See, e.g., State v. Reece, 2015 UT 45, ¶ 40 , 349 P.3d 712 (concluding that a district court’s error in denying a requested lesser-included-offense instruction was harmless because “there was overwhelming evidence” against the defendant and there was no reasonable likelihood that the jury would have acquitted, so this court’s “confidence in the verdict [was] not undermined”). 20240307-CA 18 2026 UT App 64 State v. Young verdict if the pivotal issue at trial was credibility of the witnesses and the errors went to that central issue.” Id. ¶43 In Johnson, we held that a defendant was prejudiced b

2026It’s also true that, “because the burden of proof for an affirmative defense is counterintuitive, instructions on affirmative defenses must clearly communicate to the jury what the burden of proof is and who carries the burden.” State v. Lee, 2014 UT App 4, ¶ 27 , 318 P.3d 1164 (quotation simplified).

2026It’s also true that, “because the burden of proof for an affirmative defense is counterintuitive, instructions on affirmative defenses must clearly communicate to the jury what the burden of proof is and who carries the burden.” State v. Lee, 2014 UT App 4, ¶ 27 , 318 P.3d 1164 (quotation simplified).

2020Id. ¶ 45. 23 UTAH CODE § 76-5-203(4)(a). 24 Low, 2008 UT 58, ¶ 22 . 25 A “defendant’s burden to demonstrate that the factual record supports an affirmative defense instruction is relatively low,” State v. White, 2011 UT 21, ¶ 22 , 251 P.3d 820 , and “only a minimum threshold of evidence” is required to “establish the affirmative defense.” Ross v. State, 2012 UT 93, ¶ 29 , 293 P.3d 345 .

2020Id. ¶ 45. 23 UTAH CODE § 76-5-203(4)(a). 24 Low, 2008 UT 58, ¶ 22 . 25 A “defendant’s burden to demonstrate that the factual record supports an affirmative defense instruction is relatively low,” State v. White, 2011 UT 21, ¶ 22 , 251 P.3d 820 , and “only a minimum threshold of evidence” is required to “establish the affirmative defense.” Ross v. State, 2012 UT 93, ¶ 29 , 293 P.3d 345 .

2026In those circumstances, refusal constitutes an error of law, and an error of law always constitutes an abuse of discretion.” State v. Farmer, 2025 UT App 57, ¶ 40 , 569 P.3d 267 (cleaned up), cert. denied, 574 P.3d 522 (Utah 2025); see also State v. Hunt, 2025 UT 54 , ¶¶ 45–46, 582 P.3d 772 (stating that whether the point of a proposed instruction “is properly covered in other instructions” falls “within the district court’s discretion” and is “subject to an abuse of discretion standard” but that “other jury instruction issues will present a question of law, subject to a correctness standard,”

2025For example, if a criminal defendant asserts that the district court did not provide an instruction to which the defendant was legally entitled (like an instruction on a lesser-included offense or an affirmative defense for which there was an evidentiary basis), or 12 Cite as: 2025 UT 54 Opinion of the Court gave a legally incorrect instruction, the applicable standard of review would be correctness.7 See Reece, 2015 UT 45, ¶ 16 (lesser- included offense); State v. Dozah, 2016 UT App 13, ¶¶ 12, 16 , 368 P.3d 863 (affirmative defense); State v. Eyre, 2021 UT 45, ¶ 13 , 500 P.3d 776 (legally err

2025See Rivera, 2019 UT App 27, ¶ 26 ; see also State v. Campos, 2013 UT App 213, ¶ 41 , 309 P.3d 1160 (explaining that after a defendant “produce[s] enough evidence to raise a reasonable basis for the affirmative defense,” “the burden shifts to the State to prove to the jury . . . that the defense lacks merit” (quotation simplified)), cert. denied, 320 P.2d 676 (Utah 2014). ¶29 Applying the correct standard, it is readily apparent that Johnson was at least entitled to an instruction on imperfect self- defense because the evidence, when viewed “in the light most favorable to the defense,” State v.

2025See Rivera, 2019 UT App 27, ¶ 26 ; see also State v. Campos, 2013 UT App 213, ¶ 41 , 309 P.3d 1160 (explaining that after a defendant “produce[s] enough evidence to raise a reasonable basis for the affirmative defense,” “the burden shifts to the State to prove to the jury . . . that the defense lacks merit” (quotation simplified)), cert. denied, 320 P.2d 676 (Utah 2014). ¶29 Applying the correct standard, it is readily apparent that Johnson was at least entitled to an instruction on imperfect self- defense because the evidence, when viewed “in the light most favorable to the defense,” State v.