Tennessee § 39-11-204 - Affirmative defense.

§ 39-11-204. Affirmative defense.

An affirmative defense in this title is so labeled by the phrase: “It is an affirmative defense to prosecution under …, which must be proven by a preponderance of the evidence, that …” or words of similar import. The state is not required to negate the existence of an affirmative defense in the charge alleging commission of the offense. If a person intends to rely upon an affirmative defense, the person shall, no later than ten (10) days before trial, notify the district attorney general in writing of the intention, or at such time as the court may direct naming the affirmative defense or defenses to be asserted, and file a copy of the notice with the clerk. Except as provided in this title, if there is a failure to comply with this subsection (c), the affirmative defense may not be raised; provided, that this shall not limit the right of the person to testify on the person's own behalf. The court may, for cause shown, allow late filing of the notice or grant additional time to the parties to prepare for trial or make other orders as may be appropriate. Evidence of an intention to raise an affirmative defense, which is later withdrawn, is not admissible in any civil or criminal proceeding against the person who gave the notice of the intention. This subsection (c) shall only apply in courts of record. The issue of the existence of an affirmative defense may not be submitted to the jury unless it is fairly raised by the proof and notice has been provided according to subsection (c). If the issue of the existence of an affirmative defense is submitted to the jury, the court shall instruct the jury that the affirmative defense must be established by a preponderance of the evidence. Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 5. Sentencing Commission Comments. This section prescribes the form, and the procedural and evidentiary consequences of an affirmative defense. A defense is an “affirmative defense” only if so designated in the criminal code. Since the matters at issue in affirmative defenses are peculiarly within the defendant's knowledge, the defendant has the burden of raising the issue and proving, by a preponderance of evidence, the existence of the affirmative defense. To ensure that the prosecution is not surprised by the defendant's use of an affirmative defense, subsection (d) requires the defendant to provide the prosecutors with written notice of the intent to use an affirmative defense. Under subsection (c), good cause for late filing is intended to include failure of or delays in discovery. Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Cross-References. Affirmative defense of claim of right to property, § 39-14-107 . Affirmative defense of insanity, § 39-11-501 . Affirmative defense of renunciation, § 39-12-104 . Affirmative defense to carrying a weapon on school property, § 39-17-1310 . Affirmative defense to criminal responsibility of a corporation, § 39-11-406 . Affirmative defenses to be asserted in answer, § 40-30-108 . Criminal exposure to HIV, HBV, HCV, affirmative defenses to, § 39-13-109 . Extortion, affirmative defenses to, § 39-14-112 . Gambling, affirmative offenses to, § 39-17-502 . Reports to law enforcement of certain injuries, affirmative defense to criminal liability, § 38-1-101 .