Common Defenses to Criminal Charges

Common Defenses to Criminal Charges

When you have been charged with a crime, one of the first questions you might ask is what types of defenses are available to you. This is where the advice and counsel of an experienced criminal defense lawyer is invaluable. Your attorney can help you explore your rights and options, including which defense or defenses are available and applicable in your case.


Obviously, a “not guilty” plea is an important consideration if you are not guilty of a crime. In the American criminal justice system, people accused of crimes are presumed not guilty, and this presumption stays in place unless and until the prosecution proves otherwise. It’s important to note that this presumption isn’t the same in other countries. If you have been charged with a crime in the U.S., the burden of proof is on the prosecution — the state or the federal government.

The criminal system also differs from the civil system, in which the burden of proof shifts to the plaintiff. In civil cases, a plaintiff — the person or entity that brings the case — has the burden to prove his allegations by a preponderance of the evidence. This is a lower burden of proof than that of criminal cases, which prosecutors must prove beyond a reasonable doubt.


In some cases, an accused actually committed actions that might constitute a crime, but he committed those actions because he was acting in self-defense. For example, if someone comes at you with a knife, you are generally justified in reacting by taking reasonable steps to protect your life. Depending on the circumstances, this may involve the use of force, and sometimes even deadly force.

Most of the time, courts approach self-defense cases on a case by case basis, which means they must carefully examine the specific facts of the case. For example, the use of deadly force against a grown man wielding a knife is a much different case than the use of force against a toddler wielding a knife. This is why the court will look at certain facts, such as what the aggressor was capable of and what type of force the accused relied upon to defend himself.

Mental Health

Sometimes referred to as the “insanity defense,” defendants in criminal cases might choose to argue that they are not guilty due to some kind of mental health condition. While the insanity defense tends to receive a lot of media coverage, the reality is that few defendants choose to raise it as a defense. Studies show that criminal defendants plead insanity in about 1 percent of all criminal cases and are successful just 25 percent of the time.

The precise definition of what constitutes insanity differs by state. Federal law also has a specific definition, which states, “It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.”

Furthermore, when an individual raises the insanity defense, it is an affirmative defense, which means the burden of proof shifts to the defendant. This means that the defendant is charged with proving that he was insane under the meaning of the statute when the crime took place. As you might expect, this is typically difficult to prove, especially if the defendant is arguing that he is no longer insane but was technically insane when he committed the crime.


An individual accused of a crime can plead necessity when he can show that he committed a criminal act because he was in a state of emergency. For example, someone who looted a grocery store during a natural disaster might be able to show that he only stole because he couldn’t get food from anywhere else. In this case, stealing is the “lesser of two evils” if the alternative means starving to death. By contrast, someone who looted an electronics store and stole televisions during a flood probably wouldn’t be successful in arguing that he did so out of necessity.


Entrapment is a defense that can have a great deal of gray area. According to the U.S. Justice Department, the elements of entrapment are: “(1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct.” The Justice Department points out that the second element is “by far the more important.”

This is why police sting operations are generally not considered entrapment—because the target of the sting was predisposed to commit the crime in question. For example, an undercover police officer who offers to buy drugs from a known drug dealer probably isn’t engaging in entrapment because the drug dealer is already predisposed to sell drugs to people.


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At Broden & Mickelsen, LLP, we are experienced Dallas criminal defense lawyers are dedicated to providing aggressive and ethical representation to individuals and businesses charged with crimes.