What Should I Do?
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- Common Defenses
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- The Bill of Rights
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Common Defenses to Allegations
Seven Common Defenses for the Accused
While the accused has no obligation to prove his innocence, and is indeed to be presumed innocent, defense attorneys have historically relied on one or more of the following six defenses to obtain acquittals:
“No Crime Was Committed”
This defense is routinely employed in those crimes such as driving while intoxicated (i.e., no crime committed because he wasn’t intoxicated), sexual assault (i.e., no crime committed because the alleged victim consented), theft (i.e., no crime committed because no money missing or money or item belongs to accused), and murder (i.e., the deceased died of natural causes). This defense is also available where the government has no proof of one or more of the elements of a crime.
“I Was Unable to Commit the Crime”
This defense is typically used when the accused committed the offense, but lacked the ability, either because of mental illness, intoxication or overriding emotion, to either conform his behavior to the requirements of the law or form the intent to commit the crime, particularly where criminal statute requires the offender to possess a specific intent to commit the crime.
“I Was Justified”
Where an individual is accused of assault and battery or even murder, he may concede he assaulted or killed a person, but he did so in self-defense or in defense of another. A variety of this defense may be used where an individual is charged with trespassing or breaking and entering and he maintains that circumstances, such as weather conditions, forced him to take shelter, etc.
“The Eyewitnesses Saw Someone, But it Wasn’t Me”
This defense is typically used where eyewitnesses place the accused at the scene of the crime or identify him as the perpetrator. Where the eyewitnesses have given inconsistent descriptions or failed to select the accused from a line-up, photo-array, or mug shot book, this is a very promising defense. Where available, this defense should, of course, be coupled with a credible alibi.
“The Government Made Me Do It”
The entrapment defense is appropriate where a government agent, such as DEA agent or narcotics detective, induces an individual to commit a crime he otherwise would not have committed. Obviously, this defense will succeed more often if the accused has no history of committing the offense. It is not wise to employ this defense where a DEA agent, for example, did no more than encourage the accused to obtain and sell him more cocaine than he had previously sold to anyone.
“Damn, I Hope You Can’t Prove This”
When no other defense is available, or in combination with the defenses outlined above, lawyers argue that the accused is presumed innocent and the evidence falls short of the “beyond the reasonable doubt standard.”
“You Can’t Punish Me for This”
Where the proof is overwhelming, defense attorneys argue “jury nullification,” arguing that the government had no business criminalizing the conduct forming the basis of the charges or prosecuting this particular individual for violating the statute. Attorneys essentially ask jurors to nullify the law by acquitting the accused. Lawyers may also appeal to jurors’ sense of fairness by noting that the government has unfairly singled out this individual when many people have engaged in similar conduct openly have not been prosecuted. It is usually only wise to rely on “jury nullification” when there is no victim. While juries always retain the power to acquit when presented with incontrovertible evidence, most courts in the United States discourage or even prohibit defense attorneys from directly appealing to juries to exercise their “jury nullification” power.
Kevin J. Mahoney is a Boston Criminal Defense Lawyer and author of Relentless Criminal Cross-Examination.
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