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In The Media :

What evidence is required to present self-defense in Illinois? (Part 1)

This is Part One of our article relating to what evidence is required to present Self-Defense in Illinois. Self-Defense is an affirmative defense. If you are charged with a crime in Springfield, Decatur or anywhere else in Central Illinois, contact our Criminal Defense Attorneys at (217) 414-8889 for a Free Initial Consultation.


Presenting a defense, affirmative or otherwise, is grounded in the United States Constitution. As the United States Supreme Court stated in Washington v. Texas:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This is a fundamental element of due process of law. Washington v. Texas, 87 S. Ct. 1920, 1983 (1967).

All legal defenses are available under the plea of not guilty.  People v. Ferguson, 20 Ill. 2d 295, 170 N.E.2d 171 (1960).  The Defendant is entitled to his theory of defense even if the trial judge believed that the evidence offered in support of that defense was of doubtful credibility.  People v. Brooks, 130 Ill. App. 3d 747, 86 Ill. Dec. 90, 474 N.E.2d 1287 (1st Dist. 1985).

“Affirmative defense” means that unless the state’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon. If the issue involved in an affirmative defense, other than insanity, is raised, then the state must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue, together with all the other elements of the offense. If the affirmative defense of insanity is raised, the defendant bears the burden of proving by clear and convincing evidence his insanity at the time of the offense.  720 ILCS 5/3-2.

It is a matter of law whether the defendant has met the evidentiary minimum entitling him to instructions on affirmative defenses.  People v. Everette, 141 Ill. 2d 147, 152 Ill. Dec. 377, 565 N.E.2d 1295 (1990).  It is an abuse of discretion for the trial court to refuse to instruct the jury as to the defendant’s theory of the case if it has some foundation in the evidence. People v. Swartz, 254 N.E.2d 515, 517 (4th Dist. 1989). Evidence, however slight, supporting an affirmative defense entitles the defendant to an instruction even if the evidence is conflicting and the defendant’s testimony is impeached. Id.

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