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Common Defenses to Criminal Charges

First of all, the facts and circumstances of every criminal case are different; therefore, the defense strategies used in every criminal case will be different from case to case.


For example, in a murder case, a criminal defense attorney might argue that the defendant could not have killed the victim, because the defendant was not present at the time of the killing (alibi defense). Alternatively, the criminal defense attorney might argue, in a different murder case, that the defendant was present at the time of a killing, but that the killing occurred while the defendant was defending himself (self-defense), and therefore, the killing does not amount to murder.

Note: Alternative and inconsistent theories of defense are common before a criminal trial (not in front of a jury); however, if the defendant presents a defense during a criminal jury trial, the defense attorney will not likely argue alternative defenses (i.e., alibi defense and self-defense theories are alternative and inconsistent defense theories).

Keep in mind that there is no perfect defense to any particular type of criminal charge. The defense, or defenses, that are employed by a defendant’s criminal defense attorney is guided by the facts and circumstances of each individual case. Also, keep in mind that the defendant is not required to prove his innocence; the district attorney has the burden of proving that that the defendant is guilty beyond a reasonable doubt to alleged offense (with some exceptions - see below).


For starters, criminal charges are made up of elements. A district attorney must prove every element of a criminal charge beyond a reasonable doubt in order to prove the crime has been committed. Different crimes have different elements.

For example, the crime of public intoxication requires proof of three elements:

  • The defendant was intoxicated, and

  • The defendant was in public, and 

  • The defendant was a danger to himself or others

If even one of the elements of an alleged offense is not proved beyond a reasonable doubt the defendant is entitled to a vote of not guilty (acquittal).


Note: Proof beyond a reasonable doubt is defined as an abiding conviction that the charge is true. Basically, If a juror harbors a doubt about the truth of the allegation, and that doubt is reasonable to that juror, then that juror is obligated to vote not guilty after a jury trial. As stated, proof beyond a reasonable doubt applies to every element of the criminal charge and the burden of proof is on the prosecutor.

Note: A criminal jury trial is made up of twelve jurors and a unanimous verdict is required before a defendant may be found guilty or not guilty of an alleged crime.

In general, defenses to crimes fall into three main categories: Negative, Affirmative, and  Procedural.

Negative defenses: A negative defense is when the defendant relies on lack of sufficient evidence needed to prove every element of the crime beyond a reasonable doubt.

For example, in a DUI case, the district attorney must prove two elements, and both elements must be proved beyond a reasonable doubt: (Element 1) the defendant was driving a motor vehicle, and (Element 2) at the time of driving, the defendant was under the influence of alcohol or drugs. If the district attorney does not have enough evidence to prove that the defendant was driving a motor vehicle (the first element), then there is insufficient evidence to prove the crime of DUI. This is true even if the prosecutor can prove beyond a reasonable doubt that the defendant was under the influence of alcohol or drugs (the second element).

Remember, the prosecutor must prove every element of a crime beyond a reasonable doubt. Some crimes have only a few elements, such as the crime of driving under influence of alcohol; however, some crimes have many elements, such as criminal threats.

Whether or not a prosecutor demonstrated sufficient evidence to prove guilt to a juror is up to the judgment of the individual juror. A criminal defense attorney's job is to hold the prosecutor to the high burden of proving the allegation beyond a reasonable doubt.


Neither the defense attorney, nor the defendant, has to prove that the defendant is not guilty at a jury trial, but when the defendant is relying on the insufficiency of the evidence, the defense attorney will usually attempt to expose the unreliability of the prosecutor's evidence through cross-examination (impeachment of evidence), or offer alternative defense evidence to contradict the prosecutor's evidence, or both.

For example, in a lewd and lascivious act on a child case, a criminal defense attorney might rely upon a forensic interviewer to demonstrate that the alleged victim's statements are not reliable and the product of leading, argumentative, or compound questioning by police and family.

Negative defenses include insufficient evidence, alibi defense, and more.


Affirmative defenses: An affirmative defense is an admission by the defendant that he or she committed the act that led to criminal charges, but the defendant is nevertheless not guilty of the criminal charge because of a legal justification for the act.

For example, the defendant may admit to killing another person (an affirmative act) while concurrently claim that he or she only killed the other person while acting in self-defense (a legal justification).

Unlike negative defenses, the defendant is required to prove an affirmative defense after the prosecutor proves the alleged facts of the charge. This is not an exception to the rule that the prosecutor has the burden of proving every element of the crime beyond a reasonable doubt. It is simply a requirement of the defendant to prove that there is a legal justification for his or her actions after the prosecutor proves the criminal charge. This means that in affirmative defense cases the defendant will have to demonstrate some evidence of his or her legal justification.

The most common affirmative defenses include insanity, entrapment, intoxication, defense of other people, duress, necessity, a claim of right, self-defense, mistake of fact, and more.

Procedural defenses: Procedural defenses are defenses that do not directly address the guilt or innocence of the defendant, but rather, focus on any unreliability in the process of the prosecution or on any mitigating factors that might reduce a defendant’s punishment.

For example, all of the following are considered procedural defenses:


  • A request to exclude evidence based on the unreliability of the evidence or because the defendant’s rights were violated in the collection of the evidence. The unreliability of evidence usually deals with scientific evidence such as the scientific analysis of any of the following: blood, gunshot residue (GSR), bullet trajectory, fingerprints, voice analysis, psychological testing, seminal fluid, DNA, breathalyzer results, source of fire, tire tread, hair fibers, cloth fibers, etc.

  • Demonstrating mitigating factors to request a lower a criminal charge, a lower jail or prison sentence, or both, can be argue during any plea negotiations with a district attorney or after a finding of guilt by a criminal jury panel or judge.

Other common procedural defenses include: motions to exclude a coerced or involuntary confession, motions to exclude evidence as a result of an illegal search or seizure, motions to dismiss for failure to observe the applicable statute of limitations, motions to dismiss for violations of double jeopardy law or lack of proper jurisdiction (demurrer), motions to exclude evidence of defendant's criminal history, motion to dismiss criminal charges due to a violation of ex post facto law, and more.

Procedural defenses are sometimes a complete defense, such as a motion to dismiss for failure to observe the applicable statute of limitations (the legal time limit for filing a criminal complaint). On the other hand, procedural defenses may seek to limit the use of certain evidence, or include certain evidence in a trial, without completely dismissing the criminal case.

Finally, there is a class of defenses that are not legal defenses. In other words, some defenses to crime are not affirmative, negative, technical, or procedural, and defense attorneys are not allowed to argue these defenses in a criminal case; nevertheless, they exist.


For example, in a prostitution case, a juror might believe that the district attorney has proven the prostitution case against the defendant beyond a reasonable doubt, but the juror believes that prostitution should not be a crime, and therefore, the defendant nullifies (voids) the law by voting to acquit the defendant (find defendant not guilty).


Note: Jury nullification is not a sanctioned or legal defense. Neither a defense attorney, nor a juror has the legal right to argue for such a result. Nevertheless, jury nullification happens occurs every day in American criminal courtrooms, especially in cases of prostitution, drunk in public, hazing without serious injury, child endangerment without injury, disturbing the peace, battery during mutual combatattendance at a cockfight, trespass without injury, obstructing an officer's investigation while intoxicated, and indecent exposure while intoxicated.


Other defense options include plea bargaining to reduce a charge or a penalty (or both), petition for judicial diversion (PC 1001.95), motion to reduce a felony to a misdemeanor (PC 17(b)), and more.


To learn more about defenses to crimes contact our criminal defense attorneys today for a free consultation. Our team of highly experienced criminal attorneys, including winning trial attorneys, have successfully handles hundreds of misdemeanor and felony criminal cases in the Inland Empire, including the cities of Redlands, Rancho Cucamonga, Rialto, Fontana, Yucaipa, San Bernardino, Riverside, Ontario, Victorville, Hesperia, Moreno Valley, Chino, and More. Call today!


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