|Part of the common law series|
|Other common law areas|
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense (or defence) in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any allegation made against them in a criminal or civil proceeding, a defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable.
The defense phase of a trial occurs after the prosecution phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the cross-examination during the prosecution phase.
Since a defence is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof. For example, if a defendant in an assault and battery case attempts to claim provocation, the victim of said assault and battery would not have to prove that he did not provoke the defendant; the defendant would have to prove that the plaintiff did.
Common law defences
In common law, a defendant may raise any of the numerous defences to limit or avoid liability. These include:
- Lack of personal or subject matter jurisdiction of the court, such as diplomatic immunity.
- Failure to state a cause of action or other insufficiencies of pleading.
- Any of the affirmative defences.
- Defences conferred by statute - such as a statute of limitations or the statute of frauds.
- Ex turpi causa non oritur actio - the action against the defendant arises from an illegality.
- Volenti non fit injuria - consent by the victim or plaintiff.
- In pari delicto - both sides equally at fault
- Unclean hands
Litigation is expensive and often may last for months or years. Parties can finance their litigation and pay for their attorneys' fees or other legal costs in a number of ways. Defendants can pay with their own money, through legal defence funds, or legal financing companies.