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2018 Georgia Code 16-3-28 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 16-3-28 Case Law from Google Scholar Amendments to OCGA 16-3-28

TITLE 16 CRIMES AND OFFENSES

Section 3. Defenses to Criminal Prosecutions, 16-3-1 through 16-3-40.

ARTICLE 2 JUSTIFICATION AND EXCUSE

16-3-28. Affirmative defenses.

A defense based upon any of the provisions of this article is an affirmative defense.

(Code 1933, § 26-907, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008).

JUDICIAL DECISIONS

Affirmative defense admits doing act charged, but seeks to justify, excuse, or mitigate it. Cowart v. State, 136 Ga. App. 528, 221 S.E.2d 649 (1975), overruled on other grounds, 137 Ga. App. 735, 224 S.E.2d 856, aff'd, 237 Ga. 282, 227 S.E.2d 248 (1976).

Burden of proof of affirmative defenses rests entirely upon state.

- Charges which place any burden of persuasion upon defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error; even when defendant raises one of the affirmative defenses defined in the Criminal Code (see O.C.G.A. Ch. 3, T. 16), the burden of proof still rest entirely upon the state as it does with all other issues in the case. Perkins v. State, 151 Ga. App. 199, 259 S.E.2d 193 (1979); State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975).

Trial court erred in failing to charge the jury that the state had the burden of disproving defendant's affirmative defense of accident beyond a reasonable doubt. Griffin v. State, 267 Ga. 586, 481 S.E.2d 223 (1997).

Burden of putting forward affirmative defense is on defendant, though the state has the burden of disproving the affirmative defense beyond a reasonable doubt. State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975).

Defendant need not negate any elements of crime which state must prove to convict. Holloway v. McElroy, 241 Ga. 400, 245 S.E.2d 658 (1978).

Burden placed on defendant to excuse homicide is an affirmative defense. Holloway v. McElroy, 241 Ga. 400, 245 S.E.2d 658 (1978).

Mistake of fact defense inapplicable.

- Mistake of fact defense was not applicable because the defendant did not admit participation in the murder and, in fact, denied any involvement. Murphy v. State, 280 Ga. 158, 625 S.E.2d 764 (2006).

For discussion of entrapment as affirmative defense, see State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975).

Cited in Chambers v. State, 127 Ga. App. 196, 192 S.E.2d 916 (1972); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Aleman v. State, 227 Ga. App. 607, 489 S.E.2d 867 (1997); Norris v. State, 227 Ga. App. 616, 489 S.E.2d 875 (1997); Manning v. State, 231 Ga. App. 584, 499 S.E.2d 650 (1998); Graham v. State, 239 Ga. App. 429, 521 S.E.2d 249 (1999); Bailey v. State, 245 Ga. App. 852, 539 S.E.2d 191 (2000); Mathis v. State, Ga. App. , S.E.2d (May 20, 2009); Hines v. State, 308 Ga. App. 299, 707 S.E.2d 534 (2011).

RESEARCH REFERENCES

ALR.

- Homicide: modern status of rules as to burden and quantum of proof to show self-defense, 43 A.L.R.3d 221.

Cases Citing O.C.G.A. § 16-3-28

Total Results: 8  |  Sort by: Relevance  |  Newest First

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Walker v. State, 301 Ga. 482 (Ga. 2017).

Cited 50 times | Published | Supreme Court of Georgia | Jun 19, 2017 | 801 S.E.2d 804

...istinct from self-defense, which was the defense that Appellant raised at trial, that the State rebutted, and that the jury rejected. See OCGA §§ 16-3-21 (use of force in defense of self or others), 16-3-23 (use of force in defense of habitation), 16-3-28 (“A defense based upon any of the *487provisions of this article is an affirmative defense”)....
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Adams v. State, 707 S.E.2d 359 (Ga. 2011).

Cited 49 times | Published | Supreme Court of Georgia | Feb 7, 2011 | 288 Ga. 695, 2011 Fulton County D. Rep. 208

...The definition of "affirmative defenses" cannot be limited to those which preclude criminal intent, by relying on authority which deals only with those affirmative defenses which are specifically identified as such and listed in OCGA §§ 16-3-20 through 16-3-28....
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McClure v. State, 306 Ga. 856 (Ga. 2019).

Cited 45 times | Published | Supreme Court of Georgia | Oct 7, 2019

...alleged defense, the defendant must present evidence thereon to raise the issue.” This provision defines “affirmative defense” only in terms of the defendant’s burden of production.3 As we have 2 See OCGA § 16-3-1 et seq. See OCGA § 16-3-28 (“A defense based upon any of the provisions of [Title 16, Chapter 3, Article 2] is an affirmative defense.”); see also OCGA § 16-1-3 (1) (“The enumeration in [Title 16] of some affirmative defenses shall not be construed as excluding the existence of others.”). 3 See Adams v....
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Budhani v. State, 830 S.E.2d 195 (Ga. 2019).

Cited 24 times | Published | Supreme Court of Georgia | Jun 28, 2019 | 306 Ga. 315

...260, 261-262, 695 S.E.2d 195 (2010), we have also said that "the definition of affirmative defenses cannot be limited to those which preclude criminal intent, by relying on authority which deals only with those affirmative defenses which are specifically identified as such and listed in OCGA §§ 16-3-20 through 16-3-28." Adams v....
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Griffin v. State, 481 S.E.2d 223 (Ga. 1997).

Cited 24 times | Published | Supreme Court of Georgia | Mar 3, 1997 | 267 Ga. 586, 97 Fulton County D. Rep. 713

...He also requested a charge on the State's burden of disproving an affirmative defense beyond a reasonable doubt, which was rejected. [2] Although not included in the *224 affirmative defenses enumerated in Article 2 of OCGA Title 16, Chapter 3, see OCGA § 16-3-28, we have held that accident is an affirmative defense....
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Anderson v. State, 901 S.E.2d 543 (Ga. 2024).

Cited 9 times | Published | Supreme Court of Georgia | May 14, 2024 | 319 Ga. 56

...e failed to disprove that defense beyond a reasonable doubt. But voluntary manslaughter is a separate offense, not an affirmative defense to murder, so the State was not required to disprove it beyond a reasonable doubt. See OCGA §§ 16-3-20 to 16-3-28 (listing affirmative defenses); Wyman v. State, 278 Ga....
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Murphy v. State, 625 S.E.2d 764 (Ga. 2006).

Cited 3 times | Published | Supreme Court of Georgia | Jan 17, 2006 | 280 Ga. 158, 2006 Fulton County D. Rep. 160

...an act or omission induced by a factual "misapprehension" which, if true, would have justified the act or omission. OCGA § 16-3-5. Mistake of fact is an affirmative defense, and is separate and distinct from the rule of "grave suspicion." See OCGA § 16-3-28....
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Budhani v. State, 306 Ga. 315 (Ga. 2019).

Published | Supreme Court of Georgia | Jun 28, 2019

...260, 261-262 (695 SE2d 195) (2010), we have also said that “the definition of ‘affirmative defenses’ cannot be limited to those which preclude criminal intent, by relying on authority which deals only with those affirmative defenses which are specifically identified as such and listed in OCGA §§ 16-3-20 through 16-3-28.” Adams v....