Del. P.J.I. Crim. No. 11.847(a)

THEFT/EXTORTION [AFFIRMATIVE DEFENSE

- CLAIM OF RIGHT]

In order to establish this affirmative defense, Defendant must prove each of the

following three (3) elements by a preponderance of the evidence:

(1) Defendant acted under a claim of right;

(2) Defendant’s claim of right was made honestly and in good faith; and

(3) Defendant claimed the right to do substantially what Defendant did in the

manner in which it was done.

“Under a claim of right” means Defendant claims Defendant had a right to the

property, at the time Defendant came into possession of the property.

If after considering all of the evidence, you find this affirmative defense is

established by a preponderance of the evidence, then you must find Defendant not

guilty of Extortion. Even if Defendant has not met this burden of proof for this

particular affirmative defense, you must find Defendant not guilty of Extortion if you

find the State has not met its burden of proving its case beyond a reasonable doubt.

Proof by a preponderance of the evidence means proof something is more

likely than not. It means certain evidence, when compared to the evidence opposed

to it, has the more convincing force and makes you believe something is more likely

true than not. Preponderance of the evidence does not depend on the number of

witnesses. If the evidence supporting the existence of the defense is evenly balanced,

then Defendant has not proved the existence of the defense by a preponderance of the

evidence, and you must find against Defendant on that point. The State has no burden

to present any evidence on this matter.