criminal-law new-hampshire charge-dismissed motion
If the law specifically disallows a criminal charge under a condition, does it still go before a jury if the condition is met?
<p>I have a friend who has been charged with criminal threatening. This kind of law is not supposed to be applied when a person makes a threat against someone attacking them. In NH the phraseology is as follows:</p>

<blockquote>
  <p>631:4:IV. A person who responds to a threat which would be considered
  by a reasonable person as likely to cause serious bodily injury or
  death to the person or to another by displaying a firearm or other
  means of self-defense with the intent to warn away the person making
  the threat shall not have committed a criminal act under this section.</p>
</blockquote>

<p>The situation was that the accused had his house broken into by the police doing a "wellness check", and he was unaware that they were police and he threatened them verbally thinking they were intruders. The case would clearly seem to be covered by the exception to the law above.</p>

<p>So, the question is: when an exception like this is explicitly called out in the statute, is it still necessary for the case to be heard by jury, or can a judge simply dismiss the charges on the grounds of IV above?</p>

<p>If such a dismissal is moved by the defendant's attorney, does it need to be done at the arraignment or can it be done later, for example, in a pre-trial brief?</p>

<h2>This is an example of an <a href="https://en.wikipedia.org/wiki/Affirmative_defense" rel="nofollow noreferrer">affirmative defense</a></h2>

<p>In a criminal case, the prosecution must prove each and every element of the charge beyond a reasonable doubt. Where the law provides an exception that amounts to if you do X you commit a crime unless Y, the defense has to prove (to a lower burden) that Y happened. </p>

<p>An affirmative defense only kicks in <em>if</em> the prosecution has proved their case; which is usually because the defense concedes it if they are relying on an affirmative defense. An affirmative defense also must be introduced as soon as possible; preferably before charges are laid but, if not, at the commital/arraignment - courts take a dim view (up to excluding them entirely) if they are introduced late.</p>

<p>As to whether a case like this goes to trial that depends on the evidence available to support Y and the weight that the prosecutor and then the committal/arraignment judge/grand jury gives to that evidence. If they believe that a jury would believe it, they will not take it trial; if they don't, they will.</p>
