Conn. Crim. Jury Instr. 2.9

An affirmative defense raises additional factors which, if proved, may exonerate the

defendant. State v. Wilkinson, 176 Conn. 451, 465 (1979). The burden of proof is on the

defendant to prove an affirmative defense. General Statutes § 53a-12 (b). Section “53a-12 (b)

does not require the legislature expressly to declare that an exception to culpability is an

affirmative defense for it to operate as an affirmative defense.” State v. Valinski, 254 Conn. 107,

127 (2000). It also does not “require that all affirmative defenses be statutorily prescribed.” Id.

“[I]f § 53a-12 (b) does not prohibit the recognition of common-law affirmative defenses, it

would be unreasonable to conclude that § 53a-12 (b) abrogates the rule of statutory construction

that where exceptions to a prohibition in a criminal statute are situated separately from the

enacting clause, the exceptions are to proven by the defense.” (Internal quotation marks

omitted.) Id., 127-28.

“Under Patterson [v. New York, 432 U.S. 197, 209, 97 S. Ct. 2319, 53 L. Ed. 2d 281

(1977),] a state can place the burden of proving an affirmative defense on the defendant as long

as that burden does not include negating an element of the crime.” State v. Wilkinson, 176 Conn.

451, 464 (1979); see also State v. Andresen, 256 Conn. 313, 326-27 (2001) (construing

exemptions in the Connecticut Uniform Securities Act to be affirmative defenses because they

do not serve to negate an element of the crime of selling unregistered securities).

“An affirmative defense is presented in the orderly course of a criminal trial after the

prosecution has presented its case-in-chief.” State v. Coleman, 202 Conn. 86, 91 (1987).

When instruction is required

A defendant is entitled to a requested instruction on an affirmative defense “only if there

is sufficient evidence for a rational juror to find that all the elements of the defense are

established by a preponderance of the evidence.” State v. Person, 236 Conn. 342, 353 (1996);

State v. Small, 242 Conn. 93, 102-103 (1997) (same is true regardless of whether defendant or

state requested instruction).

Specific affirmative defenses

Most affirmative defenses are legislatively created to apply to specific offenses.

Exceptions are:

• Statutes of limitations.* General Statutes §§ 54-193 and 54-193b. State v. Coleman, 202

Conn. 86, 91 (1987) (§ 54-193 (b) is an affirmative defense, not a jurisdictional bar to

prosecution); State v. Parsons, 28 Conn. App 91, 96 (1992) (burden is on the defendant

to prove a statute of limitations defense); see also State v. Ali, 233 Conn. 403, 416 (1995)

(defendant entitled to jury instruction on whether arrest warrant was issued with due

diligence so as to bring prosecution within the statute of limitations); State v. Soldi, 92

Conn. App. 849, 860 (2006) (burden is on the state to prove that the warrant was

executed within a reasonable time).

*Note that the statutes of limitations (General Statutes §§ 54-193 and 54-193b) are no

longer considered affirmative defenses, in light of the Supreme Court’s holding in State

v. Daren Y., 350 Conn. 393 (2024). The Supreme Court ruled that it was plain error for

the trial court to permit the defendant to be tried on sexual assault and risk of injury

charges for which the applicable statutes of limitations had already expired, without first

obtaining the defendant’s knowing and voluntary waiver of the right not to be prosecuted

on those charges. Id., 413. The court overruled earlier case law indicating that the statute

of limitations is an affirmative defense, one that is implicitly waived if the defendant does

not raise the issue in a timely manner before the trial court. Id., 410.

• Abandonment. State v. Wilkinson, 176 Conn. 451, 463 (1979); State v. Alterio, 154

Conn. 23, 31 (1966). Defendant must prove 1) change of purpose, and 2) communication

of that change to coparticipant(s). General Statutes § 53a-10 makes abandonment by an

accessory a general defense. Wilkinson questions whether this may have had some effect

on the holding of Alterio, but concludes that principal and accessorial liability are

sufficiently dissimilar to not infer from the enactment of § 53a-10 that abandonment in all

cases is no longer an affirmative defense.

• Lack of capacity. See Instruction 2.9-2.

Offense-specific affirmative defenses are discussed with the instruction for the offense.

The following affirmative defenses are in separate instructions:

• Inoperability of Firearm -- § 53a-16a, Instruction 2.9-3.

• Unarmed Coparticipant -- § 53a-16b, Instruction 2.9-4.

• Affirmative Defense to Felony Murder -- § 53a-54c, Instruction 5.4-2.

• Affirmative Defense of Extreme Emotional Disturbance -- § 53a-54a (a) and § 53a-55 (a)

(2), Instruction 5.2-1.

• Affirmative Defense to Sexual Assault -- § 53a-67, Instruction 7.1-13.

• Affirmative Defense to Obscenity as to Minors -- § 53a-196 (c), Instruction 7.4-4.

• Affirmative Defenses to Child Pornography Possession -- § 53a-196g, Instruction 7.7-5.

• Affirmative Defense of Drug Dependency, Instruction 8.1-4.

• Affirmative Defense to Possession of Assault Weapon -- § 53a-203o, Instruction 8.2-36.

• Affirmative Defense to Burglary -- § 53a-104, Instruction 9.2-6.

• Affirmative Defenses to Criminal Trespass -- § 53a-110, Instruction 9.4-5.