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Defenses to Criminal Liability

Right to a Defense

In a criminal case, the state must prove beyond a reasonable doubt that the accused had the actus reus (wrongful act) and mens rea (guilty mind) to commit a crime.
In response, the accused has a basic legal right to present a defense.
There are 3 main arguments that an accused may use in his or her defense:

Deny committing the act; disputing the actus reus

Argue they lacked the intent; disputing the mens rea

Attempt to justify why they committed the act

Constitutional Defenses

1st Amendment: religion, speech, assembly

4th Amendment: search & seizure

5th Amendment: due process, double jeopardy, no self incrimination

Constitutional Defenses

6th Amendment: speedy & public trial, confront witnesses, counsel, subpoena witnesses

Right to counsel is rationale for “Miranda Rights” (Miranda v. Arizona, 384 U.S. 436 (1996))

7th Amendment: right to jury trial

8th Amendment: bail & punishment

Missing Elements

Reasonable doubt as to any element of the charge

Missing ACT

Act was involuntary

Missing body

Alibi - “I wasn’t there”

Missing Mental INTENT

Diminished Capacity

Consent

Mistake of Fact not Mistake of Law

Common Defenses

There are several different legal defenses that are available to a criminally accused person.
Some of the most common ones are:

Alibi

Mental Illness / NGRI

Intoxication

Self-defense

Battered woman syndrome

Necessity & duress

Mistake of fact

Entrapment

Double jeopardy

Provocation

Choice of Evils

Alibi Defense

Arguing that the accused was not at the

scene of the crime when it took place and

therefore could not have committed the crime.

Nonetheless, state must still prove
1. guilt beyond a reasonable doubt
2. defendant was present at crime scene
3. defendant does not need to prove claim he was elsewhere when the crime was committed.
4. State not required to disprove alibi defense beyond a reasonable doubt.

Alibis – Strengths & Weaknesses

Strengths:

If a full and reliable alibi can be presented, this is the strongest defence an accused person can use and it will likely lead to an acquittal.

Weaknesses:

Alibis generally become weak when there are no witnesses to verify the claims made by the accused.
There must be more than a mere scintilla of alibi evidence. Direct contradictions of alibi claim by e.g. victim, defendant’s alibi witnesses, evidence of ficticious alibi may result in ficticious alibi instruction for the state.

Mental Illness

In most states in cases in which the defendant provides evidence at trial of his mental illness or insanity at the time of the offense, the jury or court may find the defendant:

(1) Guilty;

(2) Not guilty;

(3) Not guilty by reason of insanity at the time of the offense; or

(4) Guilty but mentally ill at the time of the offense.

Takes on the Insanity Defense

M’Naghten: disease of mind caused defect of reason such that D lacked the ability at the time of actions to know the wrongfulness of his actions or understand nature & quality of his acts (cognitive capacity)
a. If a delusion (false belief) could D have done the crime if his beliefs were true?
b. Moral “rightness” not sufficient unless defendant lost capacity to recognize what society sees as wrong
c. Inability to control oneself is no defense but see compulsion=irresistable impulse, infra.

Irresistible Impulse Test

Due to mental illness the defendant could not control her actions or conform conduct to the law (suddenness not required) (volitional capacity)

Durham Test

Conduct was the product of the mental illness; the defendant would not have committed the crime but for the disease

ALI/Model Penal Code (M'Naghten + irresistible impulse)

Due to mental disease or defect lacked substantial capacity to appreciate wrongfulness of his conduct or conform his conduct to requirements of law

NGR Insanity

Insanity of a defendant at the time of the commission of a crime is a complete defense.
Where there is evidence produced in a criminal case that defendant at the time of the offense on the verge of delirium tremens, court should instruct jury that if they believed from the evidence that the defendant at the time of the commission of the crime was not sane, and could not, because of mental incapacity, know right from wrong, whether that incapacity was caused by drink or not, they should acquit.
See intoxication infra.

Intoxication

The accused demonstrates that (s)he did not have a guilty mind at the time of the crime because he or she was intoxicated (most commonly drugs and/or alcohol).

Condition of intoxication stemming from voluntary ingestion of substance which impairs one's judgment and control does not afford defense to criminal charge unless party shows that due to the intoxication he was unable to form culpable mental state essential to commission of given offense.

Not accepted in every state.
Generally, an intoxicated person cannot form specific intent but may be found guilty of a general intent offense.
If successful, this defense may result in a lesser conviction or reduce a criminal sentence.
Jury does not have to “buy” the defense.

Capacity

Involuntary movements, such as reflexes or convulsions, bodily movements during unconsciousness or sleep, and conduct during hypnosis or resulting from hypnotic suggestion, are exempted from criminal responsibility.

A person who is unconscious at the time (s)he commits criminal act cannot be held responsible.

Justification Defenses

Self-Defense

Legal use of reasonable force in order to defend oneself, another and/or property.

Defense is mainly used in charges of assault or homicide. Accused claims to have assaulted or killed the victim because victim attacked the defendant.
Where accused actually killed the attacker, must establish that the attacker would have otherwise killed the defendant, and defendant could not otherwise have avoided his or her own death. In any case, attack by accused could not have been more than what was necessary to ward off attack of the original aggressor. Use or exchange of force must be reasonable.

E.g.: A person being attacked with a weapon may use a weapon to defend him/herself.

Multiple Assailants

A jury instruction on self defense against multiple assailants serves an important function when there is an uncertain situation in which a person, authorized to act in self defense, finds it difficult to ascertain exactly who among a number of threatening adversaries poses the immediate threat to his life.
However, as a general rule, the failure to timely assert an affirmative defense waives that defense.

Defense of Others

OK to use whatever force reasonable. appeared could have used themselves, even if ACTUALLY NONE) (generally no special relationship to person needed)

Defense of Property/Duress

If not confronted with burglar and there is a need for use, can never use deadly force
4. Duress & Necessity (for all crimes EXCEPT HOMICIDE)
a. Duress: imminent human threat death/bodily harm you or others
b. Necessity: D reasonably believed (OBJECTV) because of pressure from natural forces, conduct necessary to protect greater society harm (D cannot create the situation)

Battered Woman Syndrome

A psychological condition caused by severe and typically prolonged domestic violence.

See State v. Wanrow , 88 Wn.2d 221 (1977) and Battered Women Who Kill

The Washington Supreme Court recognized this defense as an extension of self-defense.
The main difference between battered woman syndrome (BWS) and the traditional definition of self-defense is the issue of imminent danger.
In a typical self-defense case, the danger is immediate.
With BWS, the danger may not be immediate but instead is constant.

Necessity

Court recognized criteria to determine whether the defense can be met:

1 The unlawful act was intended to avert a greater evil
2 There could not have been any reasonable, legal alternative course of action
3 The unlawful act could not have been more than what was necessary to avert the greater evil and
4 The unlawful act must have been effective, or at least highly probably effective, towards averting the greater evil.

Conviction is possible even where all of the above hold.
Some courts allow the defense where there appears to be “imminent risk.”

E.g:: A man speeds to get his wife to a hospital because she is in labor. If he is pulled over by a police officer for dangerous driving, he can try to argue that he is speeding out of necessity.

Duress

The accused alleges that he or she committed the offense under compulsion by a person to commit it, i.e. threatening death or bodily harm toward the accused, or a third party, for noncompliance. The defense can only be used if the threats were of greater severity than the offense committed, and the threats were immediate and otherwise unavoidable, and were threats of bodily harm or death.

Duress is similar to the necessity defense; in both defenses the accused claims to have been forced to commit a crime as the result of being in imminent danger.

The main difference is that with duress the accused is forced to act as the result of a threat.

Restraint

The accused was restrained by external forces, which rendered them incapable of controlling their own actions. Some examples might be a driver being pushed by a hurricane or landslide, in which they were unable to stop at the scene of an accident, or a person being tied to a pole, while others poured illegal drugs down the accused’s throat.

Mistake of Fact

This defense shows a lack of mens rea due to an honest mistake.

Ignorance of the law, or not knowing a particular offence was illegal, is not a valid defense.
Ignorance of the facts, or not understanding all of the details of a situation, can be used as a defense.

E.g.: Someone receives counterfeit money as change. Unknowingly, (s)he attempts to use the fake money somewhere else and is caught. The accused knows that counterfeit money is illegal, but truly did not know (s)he possessed fake money.

Entrapment

Accused committed an offense out of deception by an official/authority/ordinary person disguised as an official.

Accused was convinced or deceived into thinking that what (s)he was doing was not illegal, or was necessary for justice, science or another legitimate field. If accused can prove police led him to participate in a crime, the court can dismiss the charges immediately.

E.g.: Jimmy is continually harassed by an undercover police officer to purchase illegal drugs. If Jimmy can convince the court that he would not have purchased drugs without the undercover officer’s forceful encouragement, he can claim the officer “entrapped” him.

Double Jeopardy

The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. A person can be tried for an offense only once, whether they were acquitted or convicted at their trial. If a person is tried for an offense in a manner which is not an appeal of the original hearing, the accused can claim double jeopardy. This includes prosecuting the same action under the name of a different charge. Similarly, a person cannot be charged with a new offense if their action was not yet illegal at the time it was carried out.

This defense is usually presented as a pre-trial motion:

accused claims he or she was already acquitted (found not guilty) of the charge(s)

accused claims he or she was already convicted (found guilty) of the charge(s)

Provocation

A person is “provoked” to lose their self-control, and as a result commits a crime.

Provocation can be used as a partial defense to justify the accused’s actions.
E.g.: Andy is at a bar with his wife one night when another man insults his wife. Andy then assaults the man in a rage and causes significant bodily harm. Andy can use provocation as a defence and claim that if the man had not insulted his wife, he in turn would not have committed an assault that evening.

Choice of Evils

KRS 503.030(1) [C]onduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide.
(2) [However]

[w]hen the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.