O.C.G.A.

O.C.G.A. § 16-3-28 (2019)

Affirmative defenses

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

Find cases: SyfertCases citing this section GA-LEGlegis.ga.gov (official) JustiaJustia CornellLII Search CasesGoogle Scholar

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

History

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

Annotations

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), aff ’d, 237 Ga. 282, 227 S.E.2d 248, overruled on other grounds 137 Ga. App. 735, 224 S.E.2d 856 (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 now 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. State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975); Perkins v. State, 151 Ga. App. 199, 259 S.E.2d 193 (1979). 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, No. A09A0215,; No. A09A0308, 2009 Ga. App. LEXIS 586 (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.

ARTICLE 3 ALIBI

Notes of Decisions

Cited in 16 cases, 1993–2019 · leading case: McClure v. State, 306 Ga. 856 (Ga. 2019).

Sort: Relevance Newest Treatment

McClure v. State, 306 Ga. 856 (Ga. 2019). · cites it 2× “See OCGA § 16-3-28 (“A defense based upon any of the provisions of [Title 16, Chapter 3, Article 2] is an affirmative defense.”

Aleman v. State, 489 S.E.2d 867 (Ga. Ct. App. 1997). · cites it 2× “” Coercion is an affirmative defense, see OCGA § 16-3-28, and the burden rests upon the State to disprove coercion beyond a reasonable doubt.”

Pittman v. State, 430 S.E.2d 141 (Ga. Ct. App. 1993). · cites it 2× “at 713 ; see generally OCGA § 16-3-28. Here, as in Jones , there was other evidence that Pittman committed the crime; the necessity of proof of guilt beyond a reasonable doubt was fully charged to the jury, and the principles of the equal access doctrine were presented…”

Griffin v. State, 481 S.E.2d 223 (Ga. 1997). · cites it 2× “Griffin requested a charge on accident, and the trial court charged on accident. He also requested a charge on the State’s burden of disproving an affirmative defense beyond a reasonable doubt, which was rejected.”

Clark v. The State., 820 S.E.2d 274 (Ga. Ct. App. 2018). · cites it 2× “See OCGA § 16-3-28 ("[a] defense based upon any of the provisions of this article is an affirmative defense").”

Johnson v. State, 617 S.E.2d 252 (Ga. Ct. App. 2005). · cites it 4× “Defendant's contention that he was merely present at the scene is not an affirmative defense; rather the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.”

Olarte v. State, 614 S.E.2d 213 (Ga. Ct. App. 2005). · cites it 2× “846, 851 (5) ( 595 SE2d 654 ) (2004); OCGA § 16-3-28. 20 Wilson v. State, 255 Ga.”

Williams v. State, 757 S.E.2d 267 (Ga. Ct. App. 2014). · cites it 2× “OCGA § 16-3-28. “[T]his article” refers to “Article 2.”

Graham v. State, 521 S.E.2d 249 (Ga. Ct. App. 1999). · cites it 2× “Following the presentation of evidence, the trial court gave a jury instruction on the coercion defense.”

Norris v. State, 489 S.E.2d 875 (Ga. Ct. App. 1997). · cites it 2× “” Coercion is an affirmative defense, see OCGA § 16-3-28, and therefore the burden rests upon the State to disprove coercion beyond a reasonable doubt.”

Manning v. State, 499 S.E.2d 650 (Ga. Ct. App. 1998). · cites it 2× “595, 596 (2) ( 372 SE2d 811 ) (1988); see OCGA § 16-3-28. Whether Manning engaged in two unprovoked attacks or acted in defense of herself and her child was solely for the jury to resolve.”

Duncan v. State, 444 S.E.2d 583 (Ga. Ct. App. 1994). · cites it 2× “The requested charge included the statement that “alibi, mistaken identity, equal access for other persons to commit the alleged crimes and mere presence of the defendant at the alleged scene of a crime are affirmative defenses raised by the defendant in this case.”

Show all 16 citing cases →

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.