What Are My Defenses?

Introduction

When you imagine “criminal defenses,” what comes to mind? It may be an alibi (proof that the defendant was somewhere else at the time of the crime’s commission). While this defense was popularized by mainstream media, there are many more criminal defenses in practice. Indeed, many defenses can be organized into categories. These categories of defenses include:

1. Denial or failure of proof defenses

2. Affirmative defenses

3. Justification or excuse defenses

4. Factual or legal defenses

5. Jurisdictional defense

6. Imperfect or perfect defenses

Some of these categories can overlap with one another. Nonetheless, let’s examine the categories one by one to gain a better understanding. We’ll also consider the common law origin of criminal defenses.

Common Law

Although some defenses were created by statutes (written laws), many defenses originate in common law (created by courts). The English brought common law to the American colonies, and it has since influenced American law. For instance, the M’Naghten Rule, a test for insanity defenses, originates from a 17th-century English criminal case. Though the roots of common law are deep, modern law has expanded in significant ways. Now that you know the beginning, let’s consider the defenses of today. 

Denial or Failure of Proof Defense

To begin, denial or failure of proof defenses use the burden of proof in the defendant’s favor. The government must prove each element of the charge beyond a reasonable doubt in order for the defendant to be found guilty. As a defense, a defendant may deny that a criminal element has been satisfied. For example, consider the crime of federal income tax evasion (26 U.S.C. § 7201). There are several elements to this crime, including that the defendant knew they owed more income tax than they declared on their return, and acted willfully and affirmatively to evade that tax. A defense attorney can argue that these elements were not met when their client acted out of genuine ignorance. A defendant may also wait for the government to fail to meet the burden of proof for each element (see What Is The Burden of Proof?). 

Affirmative  Defense

Affirmative defenses shift the burden of proof from the government to the defendant. Usually, the government must prove their case beyond a reasonable doubt. When the defendant uses an affirmative defense, the defendant must prove it by a preponderance of evidence. This is a lower burden than beyond a reasonable doubt. The burden for affirmative defense varies by state, but California goes by a preponderance of evidence. Self-defense is an example of an affirmative defense. The defendant would have to prove by a preponderance of evidence that they were acting in self-defense. 

Excuse Defenses

Excuse defenses are types of affirmative defenses. Excuse defenses affirm that the act happened, but is excusable. Let’s consider specific excuses defenses below.

Insanity is an excuse defense asserting that the defendant lacks mental responsibility. (Kaplan) The rule is “if the defendant was legally insane at the time of his criminal act, no criminal liability will be imposed.” (Kaplan) There are several legal tests for insanity, but we will focus on tests used by California courts:

1. M’Naghten Test – this test has two prongs, either of which can satisfy insanity:

   1. Due to a severe mental illness or defect, the defendant did not know “the nature and quality of their act” (or did not know what they were doing)

   2. Due to a severe mental illness or defect, the defendant did know what they were doing, but did not know it was wrong

2. Irresistible Impulse Test – this test expands on the M’Naghten Test, and states that insanity can be met when the defendant cannot control their impulses due to a severe mental illness or defect. 

The infancy defense excuses a defendant who is legally considered too young to commit a crime. Generally, this applies to defendants under fourteen years of age. Defendants ages fourteen to eighteen are likely to have their case processed in the juvenile justice system, unless their case is diverted.

Intoxication is another excuse defense. Intoxication can be involuntary or voluntary.

Involuntary intoxication may negate the mens rea for a crime, so it can be a defense to crimes that require evidence of general or specific intent. However, voluntary intoxication is not a defense to general intent crimes because it cannot negate recklessness, negligence, or strict liability. An example is a DUI, where the defendant is criminally liable for driving while voluntarily intoxicated.

Voluntary intoxication may still be a defense for a specific intent crime if it negates the required mens rea (such as a purposeful or knowing mental state). (Kaplan)

Duress is another excuse defense. Duress excuses a defendant who reasonably believed that the only way to avoid an unlawful threat, great bodily harm, or imminent death was to engage in a crime. Duress is not a defense for murder, unless duress excuses the underlying felony that caused a felony murder. (For felony murder, see our Murder State Article) For example, if the defendant was forced, at gunpoint, to participate in an armed robbery (a felony), and a murder results from the robbery, it is considered a felony murder. Because the defendant was under duress, there is a defense to the felony murder.

Justification Defenses

Closely linked to excuse defenses are justification defenses. Justification defenses are also affirmative defenses. This means the defendant has to prove that their unlawful act was justified. 

Self-defense is a justification defense that applies where someone makes a reasonable judgment that it is necessary to use force to defend themselves from an imminent unlawful threat of bodily harm. It is key that the threat is imminent—otherwise, there is an obligation to call the police. It is also key that the defendants’ use of force must be proportionate to the attacker’s force. Using proportional force means “no more than reasonably necessary to prevent the imminent harm.” (Kaplan) This is why deadly force is only allowed in response to an imminent threat of death or great bodily harm.

Additionally, the defendant must be the victim of the threat (they cannot be the initial aggressor of the conflict). If the defendant was the initial aggressor and still seeks to claim self-defense, then they must prove they made a good faith effort to end the fight, communicated that to the other person, and that other person continued with deadly force. 

At common law, the “retreat rule” was formed in the context of deadly use of force. The retreat rule requires a victim of unlawful violence to attempt to retreat before using deadly force. The exception to the retreat rule was when attacked in one’s own home, and since expanded to include one’s office or car. Some states abide by the retreat rule, but California does not.  In California, you can defend yourself (reasonably and proportionally) without a duty to retreat. 

Defense of others

Similar to self-defense, another justification defense is proportionate use of force in defense of others. The other person or person(s) must face an imminent unlawful threat of harm or death.   

Defense of property

However, deadly force is never a justification for defense of property. Instead, a defendant can use reasonable, non-deadly force to defend their property. Defense of property is applicable where the defendant reasonably believes that their property is in immediate danger, and uses no greater force than necessary. (Kaplan) Examples include defending property from theft, destruction, or trespass.

Necessity

A final justification defense that we’ll discuss is necessity. A necessity defense justifies a crime when committing the crime is:

1. “necessary to avoid an immediate threat of greater harm to persons or property;

2. there is no reasonable alternative to breaking the law to avoid greater harm; and

3. the defendant is not responsible for causing the harm.” (Kaplan)

Bear in mind that necessity and duress are different. Necessity justifies conduct, while duress excuses it. Necessity concerns cases where circumstances forced the defendant to act. For example, there was a stampede in the city street, and the defendant broke a store window to avoid being trampled. Duress concerns cases where the defendant was coerced by someone else. For example, a robber pointed a gun at the defendant and forced them to tie up other victims and open a safe.

As an overview, these are the affirmative defenses:

Factual or Legal Defenses

A factual defense is based on a factual issue. An alibi is one example of a factual defense: at issue is whether the defendant was present at the crime. By contrast, a legal defense is based on a legal issue, such as whether the statute of limitations for prosecuting the charge has expired. Another legal issue is whether evidence against the defendant must be dismissed due to an illegal search and seizure. For example, imagine that the Police Officer Doe pulls over Jane in her car for a routine traffic stop. Without probable cause, Officer Doe removes Jane from the car and begins searching her car. During his search, Officer Doe finds a baggie of drugs under Jane’s seat and a gun in Jane’s glovebox. Jane is prosecuted for violating California firearms law and simple possession. Jane’s attorney successfully argues that the baggie and gun are inadmissible as evidence because Officer Doe’s search and seizure of the items was illegal. Officer Doe did not have probable cause, which is more than a hunch. Probable cause means a solid foundation of evidence that a crime has been (or will be) committed. From Officer Doe’s vantage point at Jane’s window, he lacked that foundation. 

Jurisdiction as a defense 

Jurisdiction protects a defendant by ensuring their case is heard by a court with sufficient authority and resources. Accordingly, jurisdiction can be a defense. For example, jurisdiction is an element of the offense in federal court. A federal prosecutor must prove that the federal court has jurisdiction over the case. Jurisdiction can be invoked by a violation of a federal law, involvement of a federal issue, the offense occurring on federal land, or other relevant circumstances. If the prosecutor fails to prove federal jurisdiction, the jury must acquit the defendant of the crime. Defense counsel may motion for a judgment of acquittal by the judge, arguing that there is an absence of evidence from the prosecutor that jurisdiction has been satisfied. To learn more about jurisdiction, visit this article on our website. 

Imperfect or Perfect Defenses

Imperfect defenses result in a reduction of the charge, which means lowering the severity of the charge. This can help with sentencing, but the defendant is still found guilty. For example, an imperfect self-defense can result in a charge being reduced from murder to manslaughter. Imperfect self-defense means the defendant unreasonably believed they were acting in self-defense. This negates the “malice aforethought” for murder. Without malice aforethought, the charge can be reduced to voluntary manslaughter. The “heat of passion” can also reduce murder to manslaughter. Visit our Manslaughter State Article to learn more.

By contrast, a perfect defense results in a finding of not guilty (acquittal).  For a murder charge, examples of a perfect defense could be perfect self-defense, defense of others where deadly force is justified, insanity, and more.

Conclusion

In summary, there are a range of criminal defenses that can be categorized as denial or failure of proof, affirmative, justification, excuse, factual or legal, or jurisdictional defenses. These defenses can be perfect (resulting in an acquittal) or imperfect (reducing the sentence or charge). While this article explored these categories broadly, it only scratched the surface. There are many more defenses. Specific crimes even have specific defenses. For instance, there are specific defenses to conspiracy, fraud, and more.