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Insufficient Evidence

The defense of insufficient evidence is perhaps the most commonly relied upon defense in a criminal case. Insufficient evidence is a negative defense, which means that the defendant asserts by implication (silence) or by testimony, that she did not commit the alleged offense, or that the prosecutor cannot prove that she committed the alleged offense.


In other words, insufficient evidence means that the prosecutor, who has the burden of proving a criminal charge to be true, does not have sufficient evidence of the defendant's guilt beyond a reasonable doubt.

Proof Beyond a Reasonable Doubt: Proof beyond a reasonable doubt means that the district attorney has presented evidence to a juror to the point where the juror has an abiding conviction that the criminal charge is true. This legal definition is sometimes confusing. Essentially, proof beyond a reasonable doubt means that the district attorney has presented sufficient evidence to a point where the juror believes the charge is true, and if the juror has any doubt as to the defendant's guilt, that doubt is subjectively unreasonable to that juror.


Note: Every element of every criminal allegation must be proved beyond a reasonable doubt. For example, if a district attorney is trying to prove the crime of of robbery, then the district attorney must prove all of the following: 1) the defendant took an item, 2) from another person, 3) with force or fear 4) without consent or legal justification, and 5) without the intent to return to the item. If the district attorney proves only four out of the five elements beyond a reasonable doubt then the defendant is entitled to a not guilty verdict.

Promoting Insufficient Evidence: The defendant is entitled to remain silent and rely on the prosecutor's burden to prove every element of the criminal charge beyond a reasonable doubt; however, usually, defense attorneys promote the insufficiency of the evidence by impeaching (discrediting) the prosecutor's evidence, or by presenting alternative evidence that exculpates (shows lack of guilt) the defendant.

For example, a police report may contain a statement that reads 'the defendant confessed.' However, a review of the actual recording of the defendant's statement, at the time the statement was made, may show that the defendant was pressured for hours into making the incriminating  "confession," which discredits, or impeaches, the reliability of that "confession." 

Another example, taken from a domestic violence case, might be where the officer suggests a narrative to the witness: Consider the implication when an officer tells a witness 'if you want [the defendant] to be punished, then you have to tell us about how he hurt you.' (Suggesting that the alleged victim is in fact hurt and that the defendant is the one who hurt the alleged victim). This type of police investigation can lead to unreliable statements.

Note: Police report alone rarely tells the whole story, especially in the proper context.

Impeaching, or discrediting, the district attorney's purported evidence comes in many fashions. The following represents some common ways in which defense attorneys impeach the district attorney's evidence, and thereby, attempt to break down the sufficiency of the district attorney's evidence that he or she needs to prove his or her case beyond a reasonable doubt.

  • Show a prosecution witness is biased in favor of the prosecutor

  • Show a prosecution witness is prejudiced against the defendant

  • Show the prosecution witness has a bad memory due to intoxication or mental disease or defect

  • Show the prosecution witness could not have have seen, heard, smelled, or felt the evidence as reported due to surrounding circumstances

  • Use expert testimony to show the defendant is not criminally liable, including child psychologist, fingerprints experts, DNA experts (blood, seminal fluid, sweat, hair, etc.), voice analysis experts, tire track experts, blood splatter experts, gunshot residue and forensics experts, and more. Note: Child psychologists are often used in crimes against children where the psychologist helps the jury understand why the child's statement(s) are the product of poor questioning, such as asking children questions that are leading, argumentative, suggestive, or compound.

  • Show police or lab technicians did not use proper protocols in collecting, storing, or analyzing evidence, which can lead to unreliable or even illegal evidence, or that lab techs lacked proper certification. Note: Any evidence seized by law enforcement that is the product of an illegal search or seizure is generally not admissible evidence against the defendant whose rights were violated

  • Show that equipment used to report evidence, such as breathalyzers, radar guns, are not properly calibrated

  • Show that statement or "confessions" were coerced or the product of undue influence

  • Defense attorney use of alibi witness, character witness, or witnesses that offer alternative facts that impeach the the district attorney's witnesses, and more.

Essentially, a defendant's attorney does not have to present a defense in a criminal case; the defense may on the fact that the district attorney has a high burden of convincing a juror that the allegations are true. However, an effective criminal defense attorney usually retells the district attorney's story by re-establishing the meaning of the district attorney's evidence. This is usually done by impeaching the district attorney's evidence or by bringing alternative evidence that supports the theory of defense, or both, so the the district attorney ends up with insufficient evidence to prove guilt beyond a reasonable doubt.


If you are charged with a crime in California, including any misdemeanor or felony charge, contact our criminal defense attorneys today. Our criminal defense attorneys have successfully defended just about every type of criminal charge, including successfully defending at trial on cases where defendants were charged with major felonies. Call today! 


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