Georgia Criminal Law – Justification as a Defense

As an affirmative defense, the fact that a person’s conduct is justified under the law is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed:

(1) When the person’s conduct is justified under Code Section 16-3-21, 16-3-23, 16-3-24, 16-3-25, or 16-3-26;

(2) When the person’s conduct is in reasonable fulfillment of his duties as a government officer or employee;

(3) When the person’s conduct is the reasonable discipline of a minor by his parent or a person in loco parentis;

(4) When the person’s conduct is reasonable and is performed in the course of making a lawful arrest;

(5) When the person’s conduct is justified for any other reason under the laws of this state, including as provided in Code Section 51-1-29; or

(6) In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.

Raising an Affirmative Defense

With respect to any affirmative defense authorized under Georgia law, unless the state’s evidence raises the issue invoking the alleged defense, the defendant, to raise the issue, must present evidence of an affirmative defense. See O.C.G.A. § 16-1-3(1).

In order to raise an affirmative defense, a criminal defendant need not “admit” anything, in the sense of acknowledging that any facts alleged in the indictment or accusation are true. Rather, in asserting an affirmative defense, a defendant may accept certain facts as true for the sake of argument, and the defendant may do so for the limited purpose of raising the specific affirmative defense at issue. A defendant is entitled to a requested jury instruction regarding an affirmative defense when at least slight evidence supports the theory of the charge, whether in the state’s evidence or evidence presented by the defendant, and regardless of whether the theory of the affirmative defense conflicts with any other theory being advanced by the defendant.

Deadly Force by Law Enforcement Officers

Georgia’s statute on the use of deadly force provides that law enforcement agents may use deadly force to apprehend a suspected felon only (1) when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; (2) when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or (3) when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm. This statute does not prevent sheriffs or peace officers from using reasonable nondeadly force as may be necessary to apprehend and arrest a suspected felon or misdemeanant.

Good Samaritan Defense

In 2014, there were numerous incidents where children, who were left inside hot, locked motor vehicles, were injured or died. In order to encourage the rescue of children in these situations, the General Assembly made it clear with the amendment of O.C.G.A. § 16-3-20(5) in 2015 that individuals who damaged and entered such motor vehicles in order to rescue children from injury or death would be justified in doing so and would have a defense to criminal prosecution.