1. Common Criminal Defenses

2. Types of Defenses
A defense consists of evidence and arguments offered by the defendant to show why he/she should not be held liable for a criminal charge
Our system generally recognizes four broad categories of defense
Alibi
Justifications
Excuses
Procedural defenses

3. Types of Defenses
Alibi – different from the other defenses as it is based on the premise that the defendant is truly innocent
An alibi is supported by witnesses and documentation – hotel receipts, eyewitness identification

4. Types of Defense
Justification – claim of moral high ground; a choice between the “lesser of two evils”
Example: a firefighter who sets a “control” fire to create a firebreak to save the town; The setting of the fire is arson, but the intent was to save the town.
Self-defense; defense of others; defense of home and property, necessity, consent, and resisting unlawful arrest

5. Justifiable Use of Force Self Defense
You must use only the force necessary to protect yourself, your dwelling, your property, or to prevent a crime.
Deadly force can only be used to protect you from imminent death or bodily harm.
You must not have provoked the attack, and there must be no alternative.
You must have a reasonable belief that death or bodily harm will otherwise occur.

6. Types of Defenses
Excuses – the person who engaged in the unlawful behavior was, at the time, not legally responsible for his/her actions
Recognized excuses include:
Duress - Involuntary Intoxication
Age - Unconsciousness
Mistake - Provocation
Insanity -Diminished capacity
Mental incompetence
Necessity

7. Duress
The wrongful threat of one person induces another person to perform an act that she or he would otherwise not perform.
Girlfriend helps boyfriend commit a robbery as he threatens to kill her kids
The threat must be immediate and inescapable

8. Duress The threat must be of serious bodily harm or death
The defendant must have become involved in the situation through no fault of his or her own

9. Age (infancy) as a Defense
Under a certain statutory definition you do not meet the maturity level to make the decisions necessary to commit a crime.

10. Mistake Ignorance of the law is not a valid excuse
Mistake of fact – getting into a car that looks just like yours and putting the key in the ignition and it works and you drive away is not a crime.

11. Insanity Case Law
Insanity – a legal definition not a medical definition
M’Naghten Rule – the inability to distinguish right and wrong must be the result of some mental defect or disability
Irresistible Impulse – Defendant knew it was wrong but could not stop doing it because of some irresistible impulse
Schizophrenia

12. Insanity Case Law
Durham Rule--a person is not criminally responsible for his /her behavior if the person’s illegal actions were the result of some mental disease or defect
Substantial capacity rule—lacks capacity to appreciate the wrong/or to conform to the law

13. “Guilty but mentally ill”
Jury may decide---defendant mentally ill, but not insane
Responsible for his acts
Defendants spend early years in mental hospital; to prison at some point

14. Insanity Defenses
Temporary Insanity – Insane only at the time of the criminal act
Diminished Capacity – Used not to be declared not guilty, but a lesser sentence; from Murder 1st degree to Murder 2nd
Mental Incompetence – Incapable of understanding the charges against them, consulting with attorney, or in aiding in their own defense

15. Intoxication
Involuntary intoxication is when a person is physically forced to ingest a substance.
Involuntary can also be a reaction to a legal prescription drug which caused psychotic episodes as a side effect.
Voluntary intoxication is becoming intoxicated on your own. (Claim that there is no mens rea)
12 states have eliminated it as a defense.

16. Necessity (Lesser evils)
A defense against criminal liability in which the defendant asserts that the circumstances required her or him to commit an illegal act.
Justifiable if harm avoided by your illegal conduct was greater than that sought to be prevented in the offense charged
Violating a restraining order to save your former spouse from drowning would avoid the greater evil

17. Procedural Defenses
Procedural Defenses – claim the defendant in some manner was discriminated against in the justice process, or some important aspect of official procedure was not properly followed
entrapment
Double jeopardy
police fraud
selective prosecution
denial of speedy trial
Prosecutorial misconduct

18. Entrapment When police deceives defendant into wrongdoing
Defendant would not otherwise have committed crime
Police cannot “plant the idea” in defendant
Defense used in some undercover drug cases

19. Legal Safeguards
Substantive criminal law---defines specific acts government will punish
Procedural criminal law---defines procedures which must be followed in adjudicating defendants

20. Bill of Rights
First ten amendments to U. S. Constitution, adopted in 1791
U. S. Supreme Court has interpreted all of them
Serve as a safeguard for accused criminal defendants
Procedural safeguards come primarily from 4th, 5th, 6th and 8th amendments

21. Fourth Amendment Protects from unreasonable searches and seizures
No warrants for a search or arrest can be issued without probable cause
Probable cause is reasonable grounds to believe the existence of facts warranting certain actions, such as a search or arrest.

22. Fifth Amendment
No one may be deprived of “life, liberty or property” without due process of law.
No double jeopardy
No person can be forced to be a witness against himself (“taking the fifth”)

23. Sixth Amendment
Guarantees a speedy trial, trial by jury, a public trial
Right to confront witnesses, right to a lawyer

24. Eighth Amendment Protects against excessive bail and fines
Protects against cruel and unusual punishment (Does not include the death penalty)

25. Due Process of Law — 14th Amendment
Government cannot act arbitrarily or unfairly
Must stay within the boundaries of reason and the law
Procedural due process—law must be carried out fairly and orderly
Substantive due process—laws themselves must be reasonable
Supreme court has big role in interpreting these requirements