Justifications, Excuses, and Affirmative Defenses

25 Pages Posted: 2 Oct 2018

See all articles by Murat C. Mungan

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 1, 2018


A defendant who admits to having committed an offense may nevertheless be acquitted if he can provide a legally cognizable justification or excuse for his actions by raising an affirmative defense. This article explains how affirmative defenses generate social benefits in the form of avoided unnecessary punishment. It then asks what kind of evidentiary standards must be used in order to balance these benefits against potential social costs arising from frivolous defense claims. It thereby provides an economic rationale for the uniformity across US jurisdictions in allocating the burden on the prosecution to prove the commission of the offense, as well as the variation across states in the standards of proof they use in determining the validity of affirmative defenses. The analysis also explains why mere assertions of undeterrability should not be considered as affirmative defenses.

Keywords: justifications, excuses, defenses, affirmative defenses, judicial error, deterrence, punishment costs

JEL Classification: K0, K14, K40, K41, K42

Suggested Citation

Mungan, Murat C., Justifications, Excuses, and Affirmative Defenses (October 1, 2018). George Mason Law & Economics Research Paper No. 18-37. Available at SSRN: https://ssrn.com/abstract=3259184 or http://dx.doi.org/10.2139/ssrn.3259184

Murat C. Mungan (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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