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Defenses to Crimes

The most common defenses to crimes are listed at the right of this page. This list is not exclusive as there may be dozens of less common defenses that might apply to a particular set of facts. Also, it is not uncommon for a criminal defense attorney to pursue multiple defenses to a criminal charge. For further information on any particular defense to crime please click on the corresponding link.

To begin with, Criminal charges are made up of elements. Every element of a criminal charge must be proved beyond a reasonable doubt, by a prosecutor, in order to prove the crime as charged. Different crimes have different elements. For example, the crime of public intoxication requires proof of three elements:

  1. The defendant was intoxicated, and
  2. The defendant was in public, and 
  3. The defendant was a danger to himself or others.

If even one of the elements of an alleged offense is not proved beyond a reasonable doubt the defendant is entitled to a vote of not guilty.

Proof beyond a reasonable doubt is defined in the law as an abiding conviction that the charge is true. Basically, If a juror harbors a doubt about the truth of the allegation, and that doubt is reasonable to that juror, then that juror is obligated to vote not guilty after a jury trial. As stated, proof beyond a reasonable doubt applies to every element of the criminal charge and the burden of proof is on the prosecutor.

Note: A criminal jury trial is made up of twelve jurors and a unanimous verdict is required before a defendant may be found guilty or not guilty.

In general, defenses to crimes fall into three main categories: Negative, Affirmative, and Procedural.

Negative defenses: A negative defense is when the defendant relies on the insufficiency of the evidence, or lack of evidence, to prove the truth of the allegation. Negative meaning the allegation is false.

For example, in a DUI case, the district attorney must prove two elements, and both elements must be proved beyond a reasonable doubt: (Element 1) the defendant was driving a motor vehicle, and (Element 2) at the time of driving, the defendant was under the influence of alcohol or drugs. If the district attorney does not have enough evidence to prove that the defendant was driving a motor vehicle (the first element), then there is insufficient evidence to prove the crime of DUI. This is true even if the prosecutor can prove beyond a reasonable doubt that the defendant was under the influence of alcohol or drugs (the second element).

Remember, the prosecutor must prove every element of a crime beyond a reasonable doubt. Some crimes have only a few elements, such as the crime of driving under influence of alcohol; however, some crimes have many elements, such as criminal threats. Some of the more common crimes are listed at the right side of this page. The elements to those crimes may be found by clicking on the corresponding link.

Whether or not a prosecutor demonstrated sufficient evidence to prove guilt to a juror is up to the judgment of the individual juror. A criminal defense attorney's job is to hold the prosecutor to the very high burden of proving the allegation beyond a reasonable doubt. Neither the defense attorney, nor the defendant, has to prove that the defendant is not guilty at a jury trial, but when the defendant is relying on the insufficiency of the evidence the defense attorney will usually attempt to expose the unreliability of the prosecutor's evidence through cross-examination, or offer alternative defense evidence to contradict the prosecutor's evidence, or both.

Negative defenses include: insufficient evidence, alibi, mistake of fact, and more. 

Affirmative defenses: An affirmative defense is an admission by the defendant that he or she committed the act that lead to criminal charges, but that the defendant is nevertheless not guilty of the criminal charge because of a legal justification for the act. Affirmative meaning the allegation is true, but there is a legal justification for the defendant's act.

For example, the defendant may admit to killing another person (an affirmative act) while concurrently claim that he or she only killed the other person while acting in self defense (a legal justification).

The defendant is required to prove an affirmative defense after the prosecutor proves the criminal charge. This is not an exception to the rule that the prosecutor has the burden of proving every element of the crime beyond a reasonable doubt. It is simply a requirement of the defendant to prove that there is a legal justification for his or her actions after the prosecutor proves the criminal charge. This means that in affirmative defense cases the defendant will have to demonstrate some evidence of his or her legal justification.

The most common affirmative defenses include: insanity, entrapment, intoxication, defense of other people, duress, necessity, claim of right,  self defense, and more.

Procedural defenses: Procedural defenses are defenses that do not necessarily address the guilt or innocence of the defendant at trial, but rather focus on the process of prosecution or defense.

For example, all of the following are considered procedural defenses:

  • A request to exclude or include evidence
  • A request to lower a prison sentence
  • A request to use a defense expert to testify
  • A plea bargain for lower charges or jail time
  • A request to lower the class of a crime, etc.

Other common procedural defenses include: motions to exclude a coerced or involuntary confession, motions to exclude evidence as a result of an illegal search or seizure, motions to dismiss for failure to observe the applicable statute of limitations, motions to dismiss for violations of double jeopardy law or lack of proper jurisdiction, motions to exclude evidence of defendant's criminal history, motions to dismiss for violations of the defendant's right to a speedy trial or Due Process violation. and more.

Procedural defenses are sometimes a complete defense, such as a motion to dismiss for failure to observe the applicable statute of limitations (the legal time limit for filing a criminal complaint). On the other hand, procedural defenses may seek to limit the use of certain evidence, or include certain evidence in a trial, without completely dismissing the criminal case.

Note: The phrase "he got off on a technicality," only exists in television. What the phrase usually refers to is a procedural defense. The term technical defense does not mean a scientific defense. For example, if the defense attorney in a DUI case is successful in arguing that the procedure for collecting or preserving the defendant's blood sample renders the results of that blood sample unreliable, and therefore, inadmissible, this is procedural defense, not a technical defense, even though it deals with technical evidence.

Often times a set of facts will lend itself to more than one defense option. For example, a defendant may defend on the grounds that he could not have killed another person as he was not present at the time of the other person's death (a negative defense); however, the defendant may also concurrently claim that he did in fact kill the other person, but that he only killed the other person while acting in self-defense (an affirmative defense). Typically, by the time a case is in front of a jury most procedural defenses have been argued and the defense attorney will only be defending with a negative or affirmative defense, but not usually both.

To learn more about defenses to crimes contact our criminal defense attorneys today for a free consultation.


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