Street Law Ch. 11:
The Criminal Defenses
Ch. 11 Part 1: No Crime
Committed
Key Terms
• Alibi
Ch. 11 Part 1:
Why Do I Need To Know This?
1. Because in the event you are investigated
for a crime you did not commit, you will
need to know how to prove your innocence.
2. Because there may come a time when you
will have to do things that are questionable
and you will want to know if you have a
legal defense for doing so.
3. Because if you want to make a valid
argument, you need to know how to
present a defense to a case.
Criminal Defenses
• In our criminal justice
system, the prosecutor
must prove his or her
case beyond a
reasonable doubt.
• As a result, the
defendant can raise
many defenses to try
and create a reasonable
doubt in the mind of the
jury about whether or
not s/he is guilty.
– It is up to the jury
whether or not to
believe either the
prosecutor or the
defendant.
Criminal Defenses
•
The defense attorney must
raise all defenses at once or
else will lose the ability to
use the defense.
– As a result, the defense
attorney will often offer
many alternatives for the
jury to believe.
– Although this may sound
like doublespeak, this is
what the defense attorney
must do to protect his or
her client.
– In legalese, it is perfectly
acceptable to say that “my
client didn’t do it, and if he
did do it, there was a good
reason for it.”
Criminal Defenses
•
•
There are 4 main lines of defense
that a defense attorney can use.
They are:
1. No crime has been committed.
2. The defendant committed the
crime, but the act was excused or
justified.
3. The defendant committed the
crime, but is not criminally
responsible for his act.
4. The victim approved of the crime.
The defense attorney will argue these
defenses in order because each
defense becomes harder to prove
– Also, if the defense uses the 2nd,
3rd, or 4th line of defense, it is
admitting to the crime.
No Crime Has Been Committed
•
•
•
•
•
This is the “I didn’t Do It” defense.
The defense can prove that no
crime was committed in 3 ways:
1. Providing an Alibi
2. Evidence
3. Disproving an element to the
crime
Alibis are not all that convincing
because people have been known
to lie.
– When an alibi is introduced,
the credibility of the witness is
always in question.
Evidence, specifically DNA or
photographic evidence is the best
method to disprove a crime.
If the defense can disprove any
one of the elements of the crime,
then the defendant is not guilty of
that specific crime.
Ch. 11 Part 2:
The Defendant Committed the Crime
But Is Not Criminally Responsible
for His/Her Actions
Key Terms
•
•
•
•
Infancy
Intoxication
Insanity Defense
Incompetency
Ch. 11 Part 2:
Why Do I Need To Know This?
1. Because there are times when you may
have to do things that are illegal and you
have a good reason for doing them, so you
will want to know whether or not you will go
to jail for your actions.
2. Because making a proper defense
argument requires that you know and
understand the limits to the argument.
3. Because you may need to work with a
criminal defense attorney and will want to
be able to assist in your defense.
The Defendant Is Not Responsible
•
•
•
Because the defendant’s intent and state of
mind are elements to most crimes, there are
several defenses that try to capitalize on the
fact that people should not be held criminally
responsible for their actions.
Also, there are times when a person may
think s/he did something wrong, when in
fact, did not, and as a result, should not be
held criminally responsible for his/her acts.
The most reasons why a person would not
be held criminally responsible for his/her
acts are:
1. Infancy
2. Intoxication
3. Insanity/Incompetency
4. Mistake of Law
5. Mistake of Fact
6. Impossibility
Infancy
•
•
•
•
There is a legal presumption that children
under the age of 7 cannot form the intent
to commit a crime. That is they do not
sufficiently know the difference between
right and wrong.
There is a general rule that children
between age 7 and 14 also generally
cannot form the intent to commit a crime,
but this can be rebutted by the prosecutor.
Children over age 14 are held responsible
for their crimes and can be punished.
– If their crimes are heinous enough, the
can even be tried as adults.
Juveniles are given many protections
under the law, and cannot be sentenced
past their 25th birthday.
– Juveniles go to separate courts that are
not as formal as traditional courts.
– At age 18, a juvenile’s record will be
sealed by the court.
Intoxication
•
The defense of
intoxication refers to
a person who is so
drunk or under the
influence of a
substance that s/he
did not know what
s/he was doing at the
time of the crime.
• There are 2 types of
intoxication
defenses. They are:
1. Voluntary
Intoxication
2. Involuntary
Intoxication
Voluntary Intoxication
•
•
•
Voluntary Intoxication occurs when
s/he becomes intoxicated of his/her
own free will.
– However, you cannot get yourself
intoxicated to establish the
defense.
Voluntary Intoxication is only a valid
defense against specific intent
crimes.
– However, most specific intents
can form in a split second, so if
the plan is hatched before the
intoxication, this is not a valid
defense.
It is not a valid defense against:
1. General Intent Crimes
2. Crimes of Malice
3. Crimes of Recklessness
4. Strict Liability Crimes
5. Crimes of Negligence
Involuntary Intoxication
•
Involuntary
intoxication occurs
when the intoxicating
substance is
consumed:
1. Without knowledge of
its nature;
2. Under duress from
another person;
3. Pursuant to medical
advice and unaware of
its intoxicating effects.
•
Involuntary
intoxication is treated
like an insanity
defense.
Insanity
•
•
•
•
•
Insanity is a very rare defense.
All criminals are presumed to be sane, and
must raise this defense at the trial on their
own.
In order to win an insanity defense, the
defendant must prove to the jury that:
1. The defendant suffered a defect of the
mind,
2. That at the time of the crime caused the
defendant to:
1. Not know the difference between right
and wrong; or
2. Conform his conduct to the law.
In California, there is a separate hearing to
determine insanity separate from the trial to
determine guilt.
Once a person is found not guilty by reason
of insanity, s/he will be held in a civil
confinement until such time as s/he is no
longer a threat or danger to society.
– This can be longer than the criminal
sentence!!!
Incompetency
•
•
•
Related to insanity is incompetency.
– Incompetency is when a person is so mentally disabled that
s/he does not understand the legal proceedings being brought
against him/her or cannot assist the lawyer in his/her defense.
– All defendants are generally assumed to be competent.
A person who is incompetent will be held in a civil confinement
until such time as the s/he is no longer incompetent.
– Once the person is released, s/he will immediately be tried for
the original crime.
In either case, the civil confinement can be longer than the
original criminal sentence!!!!
Mistake of Law
•
•
The general rule is
ignorance of the law is NO
excuse.
– The only exception to this
is when the law has never
been published
anywhere…which hasn’t
happened in over 100
years.
There is a related defense
that is the reasonable
reliance on a government
official.
– An example is a police
officer directing traffic in
a manner that would
otherwise violate the law.
Mistake of Fact
•
•
•
The mistake of fact can
negate a specific intent
crime.
The mistake of fact must
be reasonable, as
determined by the jury.
– An example would be
taking another person’s
I-Pod when you thought
it was your own I-Pod.
Mistake of fact is NOT a
defense to any strict
liability crime.
– An example is when a
person sees a fake ID
and then sells a minor
liquor.
Impossibility
•
•
•
There are 2 types of impossibility. They
are:
– Factual Impossibility
– Legal Impossibility
In both cases, impossibility is raised as a
defense only to attempted crimes.
Factual impossibility refers to when it is
physically impossible for the defendant
to commit the crime.
–
•
An example would be trying to buy stolen
goods from an undercover officer when
the goods were never stolen.
– This is not a valid defense to an
attempted crime.
Legal impossibility occurs when no law
has been violated.
– This is a valid defense to an
attempted crime.
– An example would trying to fish on a
lake without a license, when the law
does not require a fishing license on
that lake.
Ch. 11 Part 3: The Defendant
Committed the Crime But It Is
Excused or Justified
Key Terms
• Duress
• Necessity
Ch. 11 Part 3:
Why Do I Need To Know This?
1. Because situations may arise that force
you to do things that technically break the
law.
2. Because you may have to defend yourself
and you will need to know how much force
you can legally use to do so.
3. Because you may need to defend others
and will need to know how much force you
can legally use to do so.
4. Because you may need to protect your
property and will need to know how much
force you may legally use to do so.
Excuses and Justifications
•
•
•
•
Because there are times and situations
that often go beyond a person’s ability to
control, there are several excuses and
justifications to crimes that are allowed by
the law.
The difference between an excuse and a
justification is that society does not want
to encourage excuses.
– As a result, excuse defenses are not all
that common or successful.
Justifications are more common and
successful because they are more
understandable situations.
The most common excuses and
justifications are:
1. Duress
2. Necessity
3. Self Defense
4. Defense of Others
5. Defense of Property
6. Entrapment
Duress
• Duress is a justification
that occurs when a
person is under
imminent physical harm
or personal danger.
– Duress may also
occur when the threat
of imminent harm is
applied to a third
person, such as a
child or spouse.
• Duress is a defense to
almost any crime except
a homicide.
Necessity
•
•
The defense of necessity is a
justification that occurs when natural
forces cause a situation that would
result in a greater harm to society than
the crime itself.
– It is up to the jury to decide if the
defendant’s actions were
necessary, and they will use an
objective test to determine that.
• Merely thinking that an action is
necessary is not enough to make
it necessary.
– A defendant may take any
reasonable action necessary except
committing a homicide.
In order to claim necessity, the
defendant could not have caused the
original harm.
Self Defense—Non Deadly Force
•
•
•
•
Self defense is split along the
lines of non-deadly force and the
use of deadly force.
Self defense can only be claimed
for immediate threat of injury or
harm—one cannot use force to
prevent threats or future harms.
A defendant may use any nondeadly force that appears to be
reasonably necessary to defend
himself.
– What is or is not deadly force
is a matter for the jury to
decide. It is an objective test.
A defendant does not need to
retreat in order to use
reasonable non-deadly force for
self defense.
Self Defense—Deadly Force
•
•
A person may only use deadly
force for self defense when:
1. The defendant is without fault
for causing the incident; AND
2. The defendant is confronted
by unlawful force; AND
3. The defendant is threatened
with imminent death or great
bodily harm.
Generally, a defendant does not
need to retreat before using
deadly force.
– However, on the east coast,
most states do require a
defendant to retreat at any
opportunity rather than use
deadly force.
Self Defense—Deadly Force
•
•
An aggressor can only use deadly force to defend
himself when:
1. The defendant effectively withdraws from the fight
and tells the victim of that; OR
2. The aggressor is confronted with sudden escalation
of force and the aggressor cannot retreat.
Most juries believe that there is almost ALWAYS a
chance to retreat from a fight, especially one that the
defendant started, so it is very rare that juries allow this
to happen.
Defense of Others
• The general rule is that a
defendant may use nondeadly force or deadly force
to defend others who would
otherwise have the ability to
claim self defense.
• There generally does not
need to be a special
relationship between the
defendant and the victim in
order to use self defense.
• However, it is up to the jury
to determine whether what
the defendant did was
reasonable or not.
Defense of Property
•
•
•
•
In defending property, it all depends on
the type of property being defended.
The two most common categories for
property are defense of a home and
defense of other property.
In a home, a defendant may use non
deadly force to defend his home from an
unlawful entry.
– So if a person trespasses onto your
property, you may use reasonable
force to defend yourself.
In the defendant’s home only, the
defendant may use deadly force to
prevent an imminent attack to prevent a
violent felony from occurring in the
home.
– Some states still require a person to
retreat if possible.
Remember, you may never set traps to
defend your home.
Defense of Property
•
•
•
In defending any other property,
deadly force may NEVER be used.
Even if the property is in your
physical possession at the time,
such as a purse or wallet.
A person may NEVER use any type
of force to regain any property
unless the defendant is in the
immediate pursuit of the thief.
– Going onto another person’s
property to recover your property
is considered by force, even if no
one is there at the time.
– If you need to recover property
from someone, sue them in court
and have the police help in the
recovery.
• You can learn all about this in
semester 2 of Street Law!!!
Entrapment
•
•
•
Entrapment occurs when the police
approach the defendant and
propose criminal behavior to the
person.
It is only entrapment if the
defendant was not predisposed to
commit the crime.
– Usually, for entrapment to work
as a defense, the police need to
apply pressure to the defendant
on repeated occasions to
commit the crime.
Merely making the opportunity to
commit a crime available to the
defendant does not make it
entrapment.
– For example, if the police leave
an unlocked car in a high crime
area, that’s not entrapment.
Ch. 11 Part 4: The Defendant
Committed the Crime But The Victim
Forgives the Defendant
Key Terms
• Consent
• Condonation
Ch. 11 Part 3:
Why Do I Need To Know This?
1. Because in many crimes, especially
rape, consent may be a defense.
2. Because many people believe that if
they get the victim to feel sorry for the
defendant than the crime should be
forgiven.
Consent
•
•
•
Consent is generally NO
defense to a crime except
for rape and minor assaults
and batteries.
In order for consent to be a
valid defense, the defendant
must prove that:
1. The consent was
voluntarily and freely
given by the victim;
2. The victim was legally
capable of giving
consent;
3. No fraud was used to
obtain the consent.
As a result, consent is no
defense to statutory rape.
Condonation
•
•
•
Condonation occurs when
the victim forgives the
defendant after the crime
was committed.
The general rule is that the
condonation by the victim is
NO DEFENSE to any crime.
– Practically speaking,
though, if the victim does
not pursue the matter, the
police and district
attorney will not pursue
the matter either.
Also, the criminal acts by
the victim or other people
are NO defense to any
crime.