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Defenses to Crimes

The most common defenses to crimes are listed at the right of this page. The list is not exclusive as there may be dozens of less popular defenses that might fit a particular set of facts.

In general, defenses to crimes fall into several categories: Negative defenses, affirmative defenses, and technical and procedural defenses.

Negative defenses: A negative defense simply means that there is insufficient evidence to prove that the defendant committed the alleged crime. Negative meaning the alleged offense did not occur. For example, in a DUI case, the district attorney must prove that a defendant was 1) driving a motor vehicle and 2) at the time of driving the motor vehicle the defendant was under the influence of alcohol or drugs, or both. If the district attorney does not have enough evidence to prove that the defendant was driving (the second element of the crime), then there is insufficient evidence to prove the crime occurred and the defendant is entitled to an acquittal of the criminal charges. A district attorney must prove every element of a crime beyond a reasonable doubt to secure a conviction for any crime. Defenses that are associated with negative defenses include alibi defense, 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. Affirmative meaning that the conduct alleged occurred but a legal justification for the conduct makes the conduct non-criminal. For example, the defendant may admit to killing another person (the affirmative conduct) and concurrently claim that he or she killed the other person in self defense (the legal justification). The most common affirmative defenses include: insanity, entrapment, intoxication, defense of other people, duress, necessity, claim of right,  self-defense, and more.

Technical or procedural defenses: Technical or procedure defenses are defenses do not necessarily address the guilt or innocence of the defendant but rather focus on the procedure of police or prosecutors. Technical and procedural defenses may lead to a dismissal of the criminal charges or a reduction of the charges or the sentence associated with a criminal charge. The most common technical defense is associated with police misconduct in the collection of evidence that leads to a suppression of that evidence (unusable at trial). Not all police misconduct is intentional, such as an genuine, but nevertheless an objectively unreasonable reliance on an unreliable undercover informant's statement in a drug case that leads to an unwarranted search of the defendant's home in search of drugs. Procedural defenses include defenses that render the process of prosecution unavailable. Technical and procedural defenses include: coerced and involuntary confessions, illegal search and seizure, police misconduct, statute of limitations, double jeopardy, lack of jurisdiction to prosecute, misjoinder of defendants, motions to exclude certain evidence or criminal history of the defendant, ex post facto, chain o custody, speedy trial rights violations, severance or joinder of defendants, jury nullification, ambiguous laws, Miranda violations, and more.

Note I: a 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 the blood sample renders the results of the blood sample unreliable this is negative defense not a technical defense, because the unreliability of the blood results may lead to an insufficiency of the evidence. On the other hand, it may be a technical defense in a DUI case to show that the person who was called upon to analyze the results of the blood draw was not a certified lab technician as required by law.

Note II: Procedural defenses are sometimes a complete defense, such as the violation of the statute of limitations, or the legal time limit for filing a criminal complaint for a particular crime. For example, misdemeanors generally have a statute of limitations of one year from the date of offense. Therefore, if the defendant is not charged with a misdemeanor DUI within one year from the date of his or her DUI arrest then the district attorney will be legally barred from ever filing a criminal complaint against the defendant for that offense. On the other hand procedural defenses can also include motions (requests) to limit the use of certain evidence or procedures against a particular defendant, or limit the amount of time that a defendant must serve in prison after a conviction (sentence motions), etc.. There are literally hundreds of defense motions that are used in criminal defense and criminal procedure. The defenses listed in this article represent only the most common defense motions. 

Note III: For particular defenses to DUI charges (VC 23152 & VC 23153 Crimes, Please visit Defenses to DUI Crimes.

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 technical and procedural defenses have been argued and the defense attorney will only be arguing a negative or an affirmative defense, but not both.

To learn more about defenses to crimes please click on the links to the right of this page, or contact our criminal defense attorneys today for a free consultation.


IMPORTANT: If you or a loved one is charged with a crime, it is almost always best, with very little exception, to not discuss your case with anyone, including, but not limited to, family, friends, possible codefendants, and especially law enforcement agencies. Just about anything you say to anyone can be used against you. If you are charged with a crime, or are wanted for questioning relating to a crime, contact a criminal defense attorney without delay.

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Defenses to Crimes

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Common Defenses to Crime

  • Insanity
  • Intoxication
  • Entrapment
  • Due Process Violations
  • Statute of Limitations
  • Double Jeopardy
  • Search & Seizure Violations
  • Mistake of Fact
  • Insufficient Evidence
  • Alibi
  • Claim of Right
  • Procedural Defenses
  • Technical Defenses
  • Consent
  • Lack of Jurisdiction
  • Coerced Confessions
  • Jury Nullification
  • Necessity
  • Self Defense
  • Defense of Other People
  • Duress

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  • Accessory
  • Animal Cruelty
  • Arson
  • Assault
  • Battery
  • Brandishing
  • Bribery
  • BUI
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  • Conspiracy
  • Contempt
  • Criminal Threats
  • Domestic Battery
  • Drunk in Public
  • DUI
  • Elder Theft
  • Embezzlement
  • Evading
  • Extortion
  • False Imprisonment
  • Forgery
  • Hit and Run
  • Identity Theft
  • Indecent Exposure
  • Kidnapping
  • Lewd Acts
  • Manslaughter
  • Mayhem
  • Murder
  • Oral Copulation
  • Pandering
  • Perjury
  • Petty Theft
  • Pimping
  • Prostitution
  • Rape
  • Reckless Driving
  • Resisting Arrest
  • Revenge Porn
  • Robbery
  • Sexual Assault
  • Sexual Battery
  • Shoplifting
  • Sodomy
  • Soliciting Crime
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