Types of Criminal Defenses

There are a variety of criminal defenses that may allow a defendant to avoid legal responsibility for their criminal actions.

This article spotlights some of the most common affirmative and mitigating defenses to crimes, such as self-defense, duress-coercion, heat of passion, diminished capacity, insanity, and temporary insanity.

Understanding Criminal Defenses

Presumption of Innocence

Under the law, theoretically, criminal defendants must be presumed innocent at trial. The burden of proving the defendant guilty beyond a reasonable doubt rests exclusively with the prosecutor. Should the prosecution fail to prove each element of the crime against the defendant beyond a reasonable doubt, the law demands the defendant be acquitted.

Having stated this, we must also confront the reality that the presumption of innocence is a legal theory, a goal to reach, but rarely operates as such in practice. This is why it makes good sense for the defense lawyer to prepare all available legal defenses to the charges rather than assume the prosecutor will be unable to prove her case or that the jury will find reasonable doubt where reasonable doubt exists.

Affirmative and Mitigating Defenses

The law provides numerous judicially recognized affirmative and mitigating defenses in a criminal trial. We will look at the most common of these defenses below.

Where the defendant asserts an affirmative or mitigating defense to the crime, the burden shifts to the defense to raise and produce evidence supporting those defenses – note, however, that the burden of proof to prove the defendant committed the crime by a reasonable doubt does not change, even if the defense carries the burden as it relates to establishing their affirmative or mitigating defense.

Affirmative Defenses – Different from Mitigating Defenses

Mitigating defenses reduce the defendant’s culpability in relation to the offense charged by lowering the degree of the crime. For example, if the mitigating defense to a murder charge was diminished capacity, should the defense prevail on this defense, the charge of murder would be reduced to voluntary manslaughter.

Mitigating Defense Does Not Result in Acquittal or Dismissal

An affirmative defense does not allege that the physical act did not occur but instead asserts the act was legally excusable under the circumstances, such as in self-defense cases.

Duress and Coercion

A crime committed under duress and coercion lacks the necessary and specific mental state required to be found guilty of the crime. The defense lawyer must produce evidence that the defendant was forced to commit the crime under threat of force.

Threat of Force

Most states require a showing that the threat of force was compelling and that the defendant subjectively believed under the circumstances that the threat of force was both real and imminent.

For the defense to be legally valid, it is neither required that the threat of force factually occur nor does the threat of force have to be directed at the accused. In most jurisdictions, the defense is still valid, even if the force was threatened against a member of the defendant’s family or a loved one.

Insanity Defense

The affirmative defense of insanity has long been controversial in American jurisprudence. Consequently, the insanity defense has changed its meaning and application depending on the factual circumstances.

Federal Law Codified Insanity Defense

Under federal law, the insanity defense can be found under 18 U.S. Code § 17 (A).

In most jurisdictions, the insanity defense must demonstrate a severe mental condition or defect when committing the crime. The defendant’s burden of proving insanity must be proved by convincing evidence that the defendant suffered from a defect of mind or severe mental condition such that the defendant could not tell the difference between right and wrong.

When one is found not guilty by reason of insanity, it does not mean the defendant will be released back into society, but rather the defendant will be transferred to a facility for the criminally insane until and if the patient is no longer considered a threat to himself or others.

While most people react negatively to the insanity defense, the fact is, that it’s asserted in less than one percent of all violent felony cases and is rarely successful.

Temporary Insanity

The temporary insanity defense has caused much controversy and confusion in criminal law, and because of it, the defense has fallen out of favor in most states.

Even though the defense had some success in the past, asserting temporary insanity today is almost sure to ignite a public outcry mostly because it is viewed as a defense tactic to avoid punishment and to excuse criminal conduct that was otherwise motivated by a sense of honor and revenge rather than an actual mental illness.

Lorena Bobbitt Case

In 1993, a 24-year Lorena Bobbitt cut off her husband’s penis with a kitchen knife. Mrs. Bobbitt then ran out of the house with her husband’s detached penis and fled their home by car. She disposed of the attachment by throwing it out of her car window near a field.

Lorena Bobbitt was then charged with malicious wounding, and if convicted, she could face up to 20 years in prison. At trial, Lorena Bobbitt asserted the defense of temporary insanity and claimed her husband had sexually abused her throughout the marriage.

The knife attack against her husband, John Bobbitt, happened while he was sleeping, and after he returned home drunk and raped Lorena.

At trial, Lorena Bobbitt was found not guilty by reason of temporary insanity. She spent five weeks at a mental hospital for treatment and evaluation.

Diminished Capacity

Mitigating Defenses to Murder

Diminished capacity is a mental state brought on by emotional rage and resulting in the loss of physical control of one’s actions. This is also described as a crime committed in the Heat of Passion.

The emotional states are usually caused by intense provocation, causing an uncontrollable need for immediate retribution, resulting in one’s diminished capacity to control one’s actions.

These emotional states of passion and rage are argued to be so overpowering they prevented the defendant from forming the required specific criminal intent and evil deliberation required for a legal finding of murder in the first degree.

In many states, the mitigating theories of diminished capacity and killing made in the heat of passion are essentially treated as a singular mitigating defense.

Required Reflection

Under current law, the required reflection must be based on the circumstances and the degree of provocation created. Whether the defendant had sufficient time to separate himself from his rage to restrain his impulse to kill or create great bodily harm is a determining legal issue that the jury must resolve if the mitigating defense is to apply.

Some jurisdictions allow the jury to determine whether the defendant’s emotional rage was so great and the provocation so compelling that a reasonable jury would almost be compelled to find the defendant guilty of manslaughter rather than murder.

If convicted, the prison term for a murder-one charge can be significantly less if the jury finds the defendant’s actions were caused by the defendant’s mental state of diminished capacity or were done in the heat of passion. Such a finding can result in a conviction of voluntary manslaughter rather than murder.

Diminished Capacity Different  From Insanity

Diminished capacity has been compared to the insanity defense, but the two defenses differ substantially. First, the insanity plea is an affirmative defense, while diminished capacity is considered a mitigating defense.

Second, even though both defenses deal with a mental defect, disorder, or disease, diminished capacity still results in guilt and penal incarceration, while being found insane results in a finding of not guilty, and the defendant is transferred to a mental facility for treatment.

Finally, the insanity defense is a complete defense to the crime, resulting in a not-guilty verdict. On the other hand, diminished capacity results in a criminal conviction, albeit at a reduced degree and penalty level. For example, under a successful defense of diminished capacity, the crime of murder is reduced to voluntary manslaughter.

Heat-of-Passion

Passion-Driven Provocation

Under the Model Penal Code §2103, the crime of murder may be downgraded to manslaughter if the killing was committed under the influence of an extreme mental or emotional disturbance for which there was a reasonable explanation or excuse.

Unlike diminished capacity and insanity defense, the crime of provoking passion (i.e., emotional disturbance coupled with a reasonable explanation or excuse) does not arise from a mental defect, disorder, or disease. Instead, it stems from a sudden and uncontrollable emotion caused by a substantial provocation.

Substantial Provocation Required

What kind of substantial provocation? The law describes it as the type of provocation that would compel even a reasonable person to lose control. One scenario often used to describe such provocation and loss of control is the spouse who walks into the bedroom and finds their spouse in bed with another person.

This passion defense has been controversial because it suggests that some types of murder can differ in degrees and, therefore, less punishment if the defendant can establish that he had a reasonable explanation for losing control and that a reasonable person provoked under like circumstances could also lose control of his actions.

Self-Defense

Among the most well-known criminal defenses is the law of self-defense. The rules of self-defense vary significantly depending on your jurisdiction.

Under the Model Penal Code §3.04(1), self-defense is justified when the person under threat believes that such defensive force is immediately necessary for protecting oneself against the use of unlawful force.

However, the legal right to defend oneself from harm has limits. For example, self-defense is justified only to that degree deemed reasonably necessary to counter an imminent threat of force – meaning the defending force must be reasonable and proportionate to the force threatened.

For example, if a person uses their fists to harm a person, it would be wholly disproportionate to pull out a gun and shoot the attacker dead.

In some jurisdictions, the right to claim self-defense depends on whether the person asserting self-defense first attempted to avoid the violence. This is called the duty to retreat.

In self-defense cases, about half the states now require a person threatened with lethal force first to attempt to retreat before responding with lethal force. Whether the attacker intended to use deadly force often turns on the issue of whether a reasonable person would consider the attacker’s force sufficient to cause death or serious bodily harm.

Stand Your Ground Laws

Currently, 38 states, including California, have enacted stand-your-ground laws. California’s law allows any person to reasonably defend themselves or others, including to the point of applying lethal force, even if retreating from the location was still possible.

Finally, consider the crime of burglary. What if an intruder unlawfully enters another’s home, and the resident is uncertain whether the intruder presents a lethal threat? Can a resident lawfully use lethal force? Most states believe that if the intruder uses any degree of physical force, then the resident would be justified in defending themself using deadly force.

A growing number of states require residents to have a reasonable belief that the intruder intended to inflict serious bodily injury before one can legally use lethal force to defend oneself.

Consult With a Criminal Defense Lawyer

Should you have specific questions or require additional information about your legal rights we advise you to consult with a verified Criminal Defense Lawyer about your issues as soon as possible.

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