affirmative defense in Maryland

2007Chief Judge Bell of this Court, while a judge of that court, citing Foos , wrote in Brooks v. State, 85 Md.App. 355, 363 , 584 A.2d 82, 86 (1991): ‘We agree with the State that appellant’s failure to challenge his prosecution ... in the court below on the basis of the statute of limitations resulted in his waiver of that defect....” Later, he noted: “This Rule [the comparable rule] makes clear that the plea of limitation is an affirmative defense which must be pleaded specially.

2007Chief Judge Bell of this Court, while a judge of that court, citing Foos , wrote in Brooks v. State, 85 Md.App. 355, 363 , 584 A.2d 82, 86 (1991): ‘We agree with the State that appellant’s failure to challenge his prosecution ... in the court below on the basis of the statute of limitations resulted in his waiver of that defect....” Later, he noted: “This Rule [the comparable rule] makes clear that the plea of limitation is an affirmative defense which must be pleaded specially.

2021“The doctrine of laches, which is both an affirmative defense and an equitable defense, applies where there is an unreasonable delay in the assertion of one party’s rights and that delay results in prejudice to the opposing party.” Jones v. State, 445 Md. 324, 329 , 126 A.3d 1162, 1165 (2015) (citation omitted).

2021“The doctrine of laches, which is both an affirmative defense and an equitable defense, applies where there is an unreasonable delay in the assertion of one party’s rights and that delay results in prejudice to the opposing party.” Jones v. State, 445 Md. 324, 329 , 126 A.3d 1162, 1165 (2015) (citation omitted).

2022Bank of New York Mellon v. Georg, 456 Md. 616, 667 (2017) (quoting Powell v. Breslin, 430 Md. 52 , 63–64 (2013)).

2022Bank of New York Mellon v. Georg, 456 Md. 616, 667 (2017) (quoting Powell v. Breslin, 430 Md. 52 , 63–64 (2013)).

2026See Brogden v. State, 384 Md. 631, 642-44 (2005). 24 Prior to Bruen, other courts held that, when it was presumptively unlawful under state law to carry a firearm, with exceptions including when an individual had a permit, a police officer with reasonable suspicion to believe that a person had a gun could conduct a Terry stop to determine the legality of the gun possession.

2026See Brogden v. State, 384 Md. 631, 642-44 (2005). 24 Prior to Bruen, other courts held that, when it was presumptively unlawful under state law to carry a firearm, with exceptions including when an individual had a permit, a police officer with reasonable suspicion to believe that a person had a gun could conduct a Terry stop to determine the legality of the gun possession.

2019App. 450 , 459, 316 A.2d 268 (1974), an opinion Judge Moylan also authored, this Court definitively corrected that misconception, stating that "an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State's proof to a point where it no longer convinces the fact finder beyond a reasonable doubt." Judge Moylan initially questioned whether the facts in Schmitt sufficiently constituted evidence of an alibi.

2010See In re Parris W., 363 Md. 717, 728 , 770 A.2d 202 (2001) (“An alibi is not an affirmative defense, and a defendant does not bear the burden of proving that he or she was elsewhere during the commission of the crime.”); Robinson v. State, 20 Md.App. 450, 459 , 316 A.2d 268 (1974) (“Proof of an alibi, like any other defense testimony, is simply a means of controverting the State’s effort to establish criminal agency.”).

2020“An affirmative defense is one which directly or impliedly concedes the basic position of the opposing party, but which asserts that notwithstanding that concession the opponent is not entitled to prevail because he is precluded for some other reason.” Armstrong v. Johnson Motor Lines, Inc., 12 Md. App. 492, 500 (1971); see also Affirmative Defense, Black’s Law Dictionary (11th ed. 2019) (defining affirmative defense as: “A defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s . . . claim, even if all the allegations in the complaint are true.

2018App. 492 , 500-01, 280 A.2d 24 (1971) (in rejecting the argument that defendant's claimed existence of a sudden emergency was an affirmative defense, this Court instructed, "An affirmative defense is one which directly or implicitly concedes the basic position of the opposing party, but which asserts that notwithstanding that concession the opponent is not entitled to prevail because he is precluded for some other reason.").

2010Res judicata (“a thing adjudicated”) is “ ‘an affirmative defense [that] bar[s] the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been — but was not — raised in the first suit.’ ” Anne Arundel County Bd. of Educ. v. Norville, 390 Md. 93, 106 , 887 A.2d 1029 (2005) (quoting Black’s Law Dictionary 1336-37 (8th ed. 2004)).

2010Res judicata (“a thing adjudicated”) is “ ‘an affirmative defense [that] bar[s] the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been — but was not — raised in the first suit.’ ” Anne Arundel County Bd. of Educ. v. Norville, 390 Md. 93, 106 , 887 A.2d 1029 (2005) (quoting Black’s Law Dictionary 1336-37 (8th ed. 2004)).

2020In the case before us, the radiologists argue that the Court of Special Appeals erred in interpreting and extending Copsey v. Park, 453 Md. 141 (2017), to require a medical malpractice defendant arguing non-party negligence to present standard of care expert testimony where the defendant is not asserting non-party negligence as an affirmative defense.

2019App. 107 , 137 A.3d 299 (2016) ), the Court of Appeals held that a physician could introduce evidence of a non-party's medical negligence to prove "that he was not negligent and that if he were negligent, the negligent omissions of the other three subsequent treating physicians were intervening and superseding causes of the harm to the patient." Copsey v. Park , 453 Md. at 157 , 160 A.3d 623 ; see also id. at 148 , 160 A.3d 623 (holding that "evidence of non-party negligence was relevant and necessary in providing Dr. Park a fair trial as it tended to show he was not negligent"); id. at 156 ,

2019App. 285 , 308, 4 A.3d 72 , 85 (2010) (cleaned up); see also In re Parris W ., 363 Md. 717 , 728, 770 A.2d 202 , 208 (2001) ("An alibi is not an affirmative defense[.]").

2019App. 285 , 308, 4 A.3d 72 , 85 (2010) (cleaned up); see also In re Parris W ., 363 Md. 717 , 728, 770 A.2d 202 , 208 (2001) ("An alibi is not an affirmative defense[.]").

2019Beyond its role as an affirmative defense, “laches is a defense in equity against stale claims and is based upon grounds of sound public policy by discouraging fusty demands for the peace of society.” Liddy, 398 Md. at 243–44; Ross, 387 Md. at 668 ; Parker v. Bd. of Election Supervisors, 230 Md. 126 , 130–31 (1962).

2019Beyond its role as an affirmative defense, “laches is a defense in equity against stale claims and is based upon grounds of sound public policy by discouraging fusty demands for the peace of society.” Liddy, 398 Md. at 243–44; Ross, 387 Md. at 668 ; Parker v. Bd. of Election Supervisors, 230 Md. 126 , 130–31 (1962).

2017In Powell v. Breslin, 430 Md. 52, 63-64 , 59 A.3d 531, 537-38 (2013), this Court described the doctrine of res judicata, or claim preclusion, as well as the circumstances that must be present for the doctrine to apply, stating: Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same cause of action because the second suit involves a judgment that is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.

2017In Powell v. Breslin, 430 Md. 52, 63-64 , 59 A.3d 531, 537-38 (2013), this Court described the doctrine of res judicata, or claim preclusion, as well as the circumstances that must be present for the doctrine to apply, stating: Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same cause of action because the second suit involves a judgment that is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.

2007The attorney subject to the disciplinary hearing may assert “an affirmative defense or a matter of mitigation or attenuation[, but] has the burden of proving the defense or matter by a preponderance of the evidence.” Maryland Rule 16-757(b); Attorney Grievance Comm’n v. Guida, 391 Md. 33, 50-51 , 891 A.2d 1085, 1095 (2006).

2007The attorney subject to the disciplinary hearing may assert “an affirmative defense or a matter of mitigation or attenuation[, but] has the burden of proving the defense or matter by a preponderance of the evidence.” Maryland Rule 16-757(b); Attorney Grievance Comm’n v. Guida, 391 Md. 33, 50-51 , 891 A.2d 1085, 1095 (2006).

2024The Supreme Court of Maryland, in Mackall v. State, established a “test for whether a statutory exception to a crime is an essential element of the offense that the State must negate or an affirmative defense that a defendant must raise[.]” Smith v. State, 425 Md. 292, 296 (2012) (construing Mackall v. State, 283 Md. 100, 110-11 (1978)).

2024The Supreme Court of Maryland, in Mackall v. State, established a “test for whether a statutory exception to a crime is an essential element of the offense that the State must negate or an affirmative defense that a defendant must raise[.]” Smith v. State, 425 Md. 292, 296 (2012) (construing Mackall v. State, 283 Md. 100, 110-11 (1978)).

2019When a criminal defendant asserts an alibi defense, he or she does so not as an affirmative defense but to "den[y] the claim of the prosecution that he was present at the scene of the crime at the time it was committed." Simms v. State , 194 Md.

2019App. 285 , 308, 4 A.3d 72 , 85 (2010) (cleaned up); see also In re Parris W ., 363 Md. 717 , 728, 770 A.2d 202 , 208 (2001) ("An alibi is not an affirmative defense[.]").

2015Mother’s res judicata argument depends on whether Father’s cause of action—in this case, his request to change Son’s name—had previously been decided on the merits: *424 Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same cause of action because the second suit involves a judgment that “is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.” Powell v. Breslin, 430 Md. 52, 63 , 59 A.3d 531 (2013) (quoting Alvey

2015Mother’s res judicata argument depends on whether Father’s cause of action—in this case, his request to change Son’s name—had previously been decided on the merits: *424 Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same cause of action because the second suit involves a judgment that “is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.” Powell v. Breslin, 430 Md. 52, 63 , 59 A.3d 531 (2013) (quoting Alvey

1975Gunther v. State, 228 Md. 404, 410-411 , 179 A. 2d 880, 883 (1962); Chandler v. State, 7 Md.

1975Gunther v. State, 228 Md. 404, 410-411 , 179 A. 2d 880, 883 (1962); Chandler v. State, 7 Md.

2026United States v. Wilson, 143 F.4th 647, 655-56 (5th Cir. 2025).

2026United States v. Wilson, 143 F.4th 647, 655-56 (5th Cir. 2025).

2016Put another way, it is “ ‘an affirmative defense ... if “the actor reasonably believed that the owner of the premises ... would have licensed him to enter.” ’ ” Id. (quoting Warfield, 315 Md. at 498 , 554 A.2d *685 1238, in turn quoting 2 Model Penal Code and Commentaries § 221.2(3)(c), at 144).

2016Put another way, it is “ ‘an affirmative defense ... if “the actor reasonably believed that the owner of the premises ... would have licensed him to enter.” ’ ” Id. (quoting Warfield, 315 Md. at 498 , 554 A.2d *685 1238, in turn quoting 2 Model Penal Code and Commentaries § 221.2(3)(c), at 144).

1995See also Metromedia, Inc. v. Hillman, 285 Md. 161, 169 , 400 A.2d 1117 (1979); Jacron Sales Co. v. Sindorf, 276 Md. 580, 597 , 350 A.2d 688 (1976).

1995See also Metromedia, Inc. v. Hillman, 285 Md. 161, 169 , 400 A.2d 1117 (1979); Jacron Sales Co. v. Sindorf, 276 Md. 580, 597 , 350 A.2d 688 (1976).

1995See Treece v. State, 313 Md. 665, 671 , 547 A.2d 1054, 1057 (1988); Davis v. State, 237 Md. 97, 102 , 205 A.2d 254, 258 (1964), cert. denied, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965); Evans v. State, 28 Md.App. 640, 723-24 , 349 A.2d 300, 350 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976); Jackson v. State, 22 Md.App. 257, 263 , 322 A.2d 574, 577 (1974); Chandler v. State, 7 Md.App. 646, 650 , 256 A.2d 695, 697 (1969).

1995See Treece v. State, 313 Md. 665, 671 , 547 A.2d 1054, 1057 (1988); Davis v. State, 237 Md. 97, 102 , 205 A.2d 254, 258 (1964), cert. denied, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965); Evans v. State, 28 Md.App. 640, 723-24 , 349 A.2d 300, 350 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976); Jackson v. State, 22 Md.App. 257, 263 , 322 A.2d 574, 577 (1974); Chandler v. State, 7 Md.App. 646, 650 , 256 A.2d 695, 697 (1969).

1995See Treece v. State, 313 Md. 665, 671 , 547 A.2d 1054, 1057 (1988); Davis v. State, 237 Md. 97, 102 , 205 A.2d 254, 258 (1964), cert. denied, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965); Evans v. State, 28 Md.App. 640, 723-24 , 349 A.2d 300, 350 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976); Jackson v. State, 22 Md.App. 257, 263 , 322 A.2d 574, 577 (1974); Chandler v. State, 7 Md.App. 646, 650 , 256 A.2d 695, 697 (1969).

1995See Treece v. State, 313 Md. 665, 671 , 547 A.2d 1054, 1057 (1988); Davis v. State, 237 Md. 97, 102 , 205 A.2d 254, 258 (1964), cert. denied, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965); Evans v. State, 28 Md.App. 640, 723-24 , 349 A.2d 300, 350 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976); Jackson v. State, 22 Md.App. 257, 263 , 322 A.2d 574, 577 (1974); Chandler v. State, 7 Md.App. 646, 650 , 256 A.2d 695, 697 (1969).

2017The failure to include an affirmative defense in a defendant’s answer or amended answer “bars the defendant from relying on the defense to obtain judgment in its favor.” Gooch, 81 Md; App. at 385, 567 A.2d 954 .

2006In Gooch , we held that it was unnecessary to answer that question because the defendants/appellees “waived the issue by failing to plead specially this affirmative defense in their answer.” Id.