Delaware Code

11 Del. C. § 304 (2026)

Defendant’s affirmative defenses; prove by preponderance of evidence

✓ current as of May 2026

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(a) When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a preponderance of the evidence.

(b) Unless the court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the defendant, the defendant is entitled to a jury instruction that the jury must acquit the defendant if they find the affirmative defense established by a preponderance of the evidence.

(c) An affirmative defense is established by a preponderance of the evidence when the jury is persuaded that the evidence makes it more likely than not that each element of the affirmative defense existed at the required time.

11 Del. C. 1953, § 304; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1;

Notes of Decisions

Cited in 7 cases, 1975–2019 · leading case: Rivera v. State, 351 A.2d 561 (Del. 1976).

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Rivera v. State, 351 A.2d 561 (Del. 1976). · cites it 2× “§ 401 1 classifying mental illness as an affirmative defense which the defendant must prove by a preponderance of the evidence under 11 Del.C. § 304. 2 *562 The defendant also charges error, and violation of due process and equal protection, in that the jury instruction limited…”

Bryson v. State, 840 A.2d 631 (Del. 2003). “11 Del. C. § 304(a). 13 . 11 Del. C. § 304(a).”

United States Ex Rel. Hand v. Redman, 416 F. Supp. 1109 (D. Del. 1976). “” 11 Del.C. § 304 provides in part: “(a) When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a preponderance of the evidence.”

Hamilton v. State, 343 A.2d 594 (Del. 1975). “11 Del.C. § 304 provides: “§ 304. Defendant’s affirmative defenses; prove by preponderance of evidence, “(a) When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a…”

Dordell v. State (Del. 2015). · cites it 3× “§ 304(b) provides that the defendant is “entitled” to a jury instruction regarding the claim of right affirmative defense “[u]nless the court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the 5…”

Woody v. State (Del. 2019). “28 (24) In the alternative, Woody argues that the defense should be considered a simple defense rather than an affirmative defense.”

Phillips v. State (Del. 2014). “13 11 Del. C. § 304(a) (“When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a preponderance of the evidence.”

— 11 Del. C. § 304(a) — 3 cases

Bryson v. State, 840 A.2d 631 (Del. 2003). “11 Del. C. § 304(a). 13 . 11 Del. C. § 304(a).”

Dordell v. State (Del. 2015). “§ 304(b) provides that the defendant is “entitled” to a jury instruction regarding the claim of right affirmative defense “[u]nless the court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the 5…”

— 11 Del. C. § 304(b) — 1 case

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