defensespeak: common defenses to criminal charges defenses.pdf... · 14. can i claim self-defense...

Chapter 13

Defensespeak: Common Defensesto Criminal Charges

Section I: Prosecutor’s Failure to Prove Guilt ................................................................ 13/3

1. What is the most common defense argument? .................................................... 13/32. Can I ask a judge or jury to find me not guilty if I don’t testify

or call witnesses? ................................................................................................ 13/33. What are some of the ways the defense can poke holes in the testimony

of prosecution witnesses? ................................................................................... 13/44. Can I use the not guilty defense argument if I take the stand

to testify or call witnesses? .................................................................................. 13/5

Section II: Partial” Defenses ......................................................................................... 13/6

5. If I go to trial, are a conviction or an acquittal of the crime I’m chargedwith my only options? ........................................................................................ 13/6

6. In a jury trial, how and when do the jurors find out about the possibilityof convicting the defendant for lesser crimes than those charged? ...................... 13/7

7. Can I argue both that I am not guilty of any crime and that if I am guilty,I am guilty only of a lesser crime? ....................................................................... 13/8

8. Does the judge always have to instruct jurors about possible lesser crimes? ....... 13/89. Is it always in my interest as a defendant for the judge to instruct

the jury about a lesser crime? ............................................................................. 13/810. Can the judge give a lesser crime instruction over an objection

by the defense? ................................................................................................... 13/911. Can I base a partial defense on something other than a lesser offense? ............... 13/9

Section III: Self-Defense ............................................................................................... 13/9

12. In what kinds of cases can I argue self-defense? .................................................. 13/913. Do I have to admit that I struck the so-called victim in order to use

a self-defense argument? .................................................................................. 13/1014. Can I claim self-defense if I hit someone before they hit me? ............................ 13/1015. How much force can I use in self-defense? ....................................................... 13/1016. If I argue self-defense, do I have to convince the judge or jury that

I was justified in my action? ............................................................................. 13/1117. If I claim that the supposed victim of my assault attacked me first, will

I be allowed to offer evidence showing that the attacker had beenviolent in the past? ........................................................................................... 13/11

Section IV: Alibi .......................................................................................................... 13/12

18. Can I offer evidence that I was somewhere else when a crime took place? ....... 13/1219. Doesn’t the word “alibi” imply that I’m lying? .................................................. 13/1220. Can I offer alibi evidence if I choose not to testify? ........................................... 13/1221. Do I have to convince a judge or jury to accept my alibi? ................................ 13/1322. Do I have to notify the prosecution before trial that I will

present alibi evidence? ..................................................................................... 13/13

Section V: Insanity ...................................................................................................... 13/13

23. Why do we allow a guilty defendant to be found not guiltyby reason of insanity? ....................................................................................... 13/13

24. What is the most widely used definition of insanity? ........................................ 13/1425. Do courts use other definitions

of insanity (besides the M’Naghten rule)? ......................................................... 13/1426. If I’m found not guilty by reason of insanity, will I be set free? .......................... 13/1527. Can defendants be found both guilty and insane? ............................................. 13/1528. Do I need a psychiatrist to testify that I was insane? .......................................... 13/1529. I’m indigent—how can I afford to hire a psychiatrist? ....................................... 13/1530. Do I have to convince the judge or jury that I was insane? ............................... 13/1631. Do I have to notify the prosecution before trial that I will present

an insanity defense? ......................................................................................... 13/16

Section VI: Intoxication (Under the Influence of Drugs or Alcohol) ........................... 13/17

32. Can I use the fact that I committed a crime because I got high ondrugs or alcohol as a defense? .......................................................................... 13/17

33. If I commit a crime because I get high on drugs or alcohol, might thatqualify me for a partial defense? ....................................................................... 13/17

34. Can I go free if I commit a crime because I involuntarily consumeddrugs or alcohol? .............................................................................................. 13/18

Section VII: Entrapment .............................................................................................. 13/19

35. Am I guilty of a crime if a government agent talks me into committing it? ........ 13/1936. Do I have to convince a judge or jury that I was entrapped? ............................. 13/19

Section VIII: Jury Nullification .................................................................................... 13/20

37. Does a jury have the power to find me not guilty no matter what theevidence against me? ....................................................................................... 13/20

38. Can the defense argue nullification to the jury as a defense? ............................ 13/2039. What are the two most common situations in which a jury might

nullify a law? .................................................................................................... 13/2140. Should I turn down a good plea bargain and hope for jury nullification? .......... 13/21

Defensespeak: Common Defenses to Criminal Charges 13/3

Defenses are the arguments—andsupporting evidence—that adefendant puts forward at trial to

argue for an acquittal. Although there aremany crimes, only a limited number ofdefenses are available. This chapter reviewsthe most common of these.

“True” DefensesTechnically, not every defense argumentconstitutes a true defense. To be legallyprecise, the only true defense arguments arethose that admit that a defendant committeda crime, and seek to avoid punishment basedon a legal excuse or justification. Forexample, self-defense and insanity are truedefenses. Each defense admits that thedefendant engaged in prohibited conduct,and offers a justification that renders theconduct noncriminal. By contrast, alibi is nota true defense because a defendant whoclaims to have been elsewhere at the time acrime was committed obviously does notadmit to committing the crime. Technicalitiesaside, this chapter explains the commondefense arguments, regardless of whetherthey constitute true defenses or simplyattempts to refute the prosecution’s case attrial.

Section I: Prosecutor’sFailure to Prove GuiltThis section is about the defense mostfrequently used in criminal trials—theinability of the prosecution to prove guiltbeyond a reasonable doubt.

1. What is the most commondefense argument?

Undoubtedly, the most common defenseargument is that the prosecution has failed toprove the defendant guilty. Because of theconstitutional principles that a defendant ispresumed innocent and that the prosecutionhas to prove guilt beyond a reasonabledoubt, this is often the strongest argumentthe defendant can make. (See Chapter 17,Section II, for more on the prosecution’sburden of proof.)

2. Can I ask a judge or jury to findme not guilty if I don’t testify orcall witnesses?

The defendant can sit silently through theentire trial and present no witnesses, but stillargue that the prosecution case is simply tooweak to prove guilt beyond a reasonabledoubt—even assuming everything theprosecution witnesses said was accurate.More likely, even if the defense presents nocase of its own, it will try to strengthen thenot guilty argument by cross-examiningprosecution witnesses and poking as manyholes in their stories as possible. Takentogether, the defense argument goes, theholes create a reasonable doubt as to thedefendant’s guilt. At the same time, theabsence of a defense case denies theprosecution a target to poke holes at inreturn, as the prosecution generally is notpermitted to comment on the fact thatdefendant chose to not testify, or failed toput on an affirmative case. (See Chapter 17,Section III, for more on the right to remainsilent.)

13/4 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS

“Will They Think I’m GuiltyIf I Don’t Testify?”Defendants have a constitutional right not totestify, and judges and jurors are legallyprohibited from taking a defendant’s silenceas an indication of guilt. However, a riskexists that some jurors may disregard thisrule, if only subconsciously. For furtherdiscussion, refer to Chapter 17, Section III,where the defendant’s right to remain silent isexplored in more detail.

Case Example: Noah Counting is chargedwith a nighttime burglary. The only evidenceof his guilt is an eyewitness who thought sherecognized Noah running out of the burglar-ized house about the time of the crime.Cross-examining this witness, Noah’sattorney gets her to admit that she reallycouldn’t be absolutely sure it was Noah.After the prosecution rests, the defense mustdecide whether to put on its case. It canpresent a witness to testify that Noah and thewitness were playing cards at the time of theburglary. However, the prosecution canattack the defense witness’s credibility onseveral grounds. Also, the defense witness iseasily rattled when asked questions.

Question: Should the defense put thiswitness on the stand?

Answer: Probably not. The prosecution eye-witness’s testimony is so weak that it isunlikely to persuade a judge or jury ofNoah’s guilt. By presenting its own shakywitness, the defense would risk making theprosecution’s case look stronger.

Motion to DismissA useful defense strategy is to make a motionto dismiss at the close of a shaky prosecutioncase. If the judge grants the motion, the caseis over without the defendant having tochoose whether to present evidence andcreate the risk of inadvertently strengtheningthe prosecutor’s case. (For more on motionsto dismiss, see Chapter 21.)

3. What are some of the ways thedefense can poke holes in thetestimony of prosecution witnesses?

Cross-examining prosecution witnesses andbringing out weaknesses in their testimonyrequires skill and preparation. The aim is toundermine the credibility (believability) ofthe witness. The more the defense undercutsthe government witnesses, the more likely itis that the judge or jury will form a reason-able doubt as to the defendant’s guilt and bewilling to acquit her. The issues that thedefense typically uses when attempting tocast doubt on prosecution witness testimonyare these:

a. Bias

A prosecution witness is biased against thedefendant, and therefore is lying or grosslyexaggerating.

Example: “You’re making this up to getback at the defendant for firing you fromyour job, aren’t you?”


b. No opportunity to accurately observe

A prosecution witness’s observations aremistaken because (1) the lighting was bad;(2) the witness was under the influence ofdrugs or alcohol; (3) the witness was too faraway; etc.

Example: “You only got a side view ofthe robber from across the street, cor-rect?” “And you’d drunk three beers inthe hour before you saw the robbery,right?”

c. Faulty police methods

Evidence from police laboratories is unreli-able because machines were not properlymaintained, technicians were not properlytrained, evidence was not carefully collectedor stored, etc.

Example: “You personally have no ideawhether the breathalyzer machine wasoperating properly, right?” “Lots ofspectators were wandering in and out ofthe house while you were gatheringevidence, weren’t they?”

d. A prosecution witness cuts a deal

A prosecution witness lies to curry favor withthe prosecution to get a good deal oncriminal charges the witness is facing.

Example: “You’re hoping to stay out ofjail by testifying against the defendant,right?”

e. Implausible story

A prosecution witness’s story is not believ-able (flies in the face of common experi-ence).

Example: “Your reason for being out onthe street at 3 A.M. is that you suddenlyremembered you had to return a librarybook?”

Of course, it is not always possible forthe defense to find weaknesses in a prosecu-tion witness’s testimony. And the presence ofa weakness or two does not automaticallymean that the judge or jury will disbelievethe prosecution witness. However, confiningthe defense case to attacking the credibilityof prosecution witnesses on cross-examina-tion, and then arguing reasonable doubt, is afrequent defense strategy.

4. Can I use the not guilty defenseargument if I take the stand totestify or call witnesses?

Yes. Even when defendants testify or callwitnesses, they typically still rely on theargument that the prosecution has failed toprove guilt beyond a reasonable doubt. It’simportant for defendants to realize that evenwhen they present evidence, they usuallyare not legally obligated to convince thejudge or jury that the defense story isaccurate. The burden of proving guilt rests atall times on the prosecutor. As defenseattorneys frequently remind judges andjurors, “It’s not up to us to convince you thatthe defendant is innocent. The defendant ispresumed innocent, and the burden remainson the prosecution to convince you beyonda reasonable doubt of guilt.”


Keep the Jury’s Attention Focused onthe Prosecution’s Weak CaseSometimes, defense attorneys decide not tocall witnesses for fear that jurors will errone-ously think that by doing so the defenseassumes the burden of proving the defensecase accurate. The benefits of not presentinga defense case—hopefully impressing onjurors the fact that the entire burden of proofis on the prosecution—may outweigh the riskthat jurors will think that the failure to calldefense witnesses is evidence of guilt.

Section II: “Partial” DefensesThis section is about defenses that may notentirely acquit the defendant but that dowork to defeat the most serious charges inthe case.

5. If I go to trial, are a conviction oran acquittal of the crime I’mcharged with my only options?

Not necessarily. Defendants often go to trialexpecting to be convicted of something, andaim for a conviction of a less serious crimethan the crime they’re charged with. Convic-tion of lesser crimes (also known as lesserincluded offenses) is often a possibilitybecause for most crimes the prosecution hasto prove a number of discrete elements. (SeeChapter 24.) These elements are like build-ing blocks. And if the defendant can create areasonable doubt about a necessary block inthe more serious offense, the defendant may

be found guilty only of a lesser crime thatrequires proof of fewer blocks. Whendefendants can reasonably argue for lessercharges, they will offer “partial defenses,”concentrating their attack on the prose-cution’s lack of proof for a block or element,the absence of which converts a seriouscharge into a lesser crime. For example:

• A defendant charged with the felony ofassault with a deadly weapon may arguethat the object used in the fight was nota dangerous weapon, and therefore thatthe evidence at most supports a convic-tion for simple assault, a misdemeanor.

• A defendant charged with the felony ofpossession of drugs for sale may arguethat the defendant possessed only asmall quantity of drugs, and that there-fore the evidence at most supports aconviction of possession of drugs forpersonal use, a misdemeanor.

• A defendant charged with the felony ofcar theft may argue that the evidencedoes not establish that the defendantintended to steal the car but rathersupports a conviction for the lessercrime of borrowing the car withoutpermission—that is, joyriding.

• A defendant charged with assault withintent to commit murder may offerevidence that she has a mental impair-ment which makes her incapable offorming the intent to kill, and thattherefore the evidence supports at mosta conviction for the lesser crime ofassault with a deadly weapon.


The Common Partial Defenseof Lack of IntentIn many serious crimes, the prosecution hasto prove not only what a defendant did, butalso that the defendant acted with a certainmental state known as intent. For example,assume that the prosecution proves that Smithfired a gun and hit Wesson in the shoulder.Depending on what the prosecution canprove about Smith’s intent in firing the gun:

• Smith may be completely innocent (Smithfired the gun completely by accident)

• Smith may be guilty of a minor misde-meanor (Smith fired the gun on purposebut had no way of anticipating thatWesson was around)

• Smith may be guilty of assault with intentto commit great bodily injury, a seriousfelony (Smith was trying to wound but notkill Wesson), or

• Smith may be guilty of attempted murder(Smith was actually trying to kill Wesson).Because intent can be so critical to the

outcome of a case, defendants often offerpartial defenses designed to show that theydidn’t have the intent required for the moreserious offenses. In one recent case, forexample, a mother was charged with murderwhen she allegedly failed to secure her infantchild in a car seat and then lost control of hercar, resulting in the child’s death. To prove themother guilty of murder, the prosecution hadto prove that the mother acted with arecklessness amounting to intent to kill. Thejury concluded that the mother did not havethat intent and convicted her only of amisdemeanor.

6. In a jury trial, how and when dothe jurors find out about thepossibility of convicting thedefendant for lesser crimes thanthose charged?

The defense has two ways of informingjurors about the possibility of convicting thedefendant of lesser crimes. One is throughargument. At the close of the evidence, thedefense argues that, at most, the prose-cution’s evidence supports conviction for alesser crime. Second, the defense asks thetrial judge to include a lesser crime instruc-tion with the rest of the jury instructions.(See Chapter 21, Section XII, for more onjury instructions.) If the judge agrees that theevidence could support conviction of alesser crime, the judge may give an instruc-tion along these lines:

“Jurors, Mr. Hatfield (the defendant)is charged with assault with a deadlyweapon. To convict Mr. Hatfield of thiscrime, you must be convinced beyond areasonable doubt that Mr. Hatfieldstruck Mr. McCoy with an object that isinherently dangerous to human life. Ifyou are not convinced beyond areasonable doubt that the object wasinherently dangerous to life, then Mr.Hatfield can be guilty at most of thelesser crime of simple assault.”


7. Can I argue both that I am notguilty of any crime and that if Iam guilty, I am guilty only of alesser crime?

Legally, yes. For example, the defendant canargue that “I hit McCoy in self-defense, andtherefore I’m not guilty of anything, but evenif you decide that I didn’t act in self-defense,you should decide that the object I used, asmall stick, was not inherently dangerous tohuman life. Therefore I cannot be guilty ofanything more than simple assault.”

This kind of in-the-alternative argumentcan be hard for jurors to follow. Jurors mayalso be put off by the defendant’s morallyambiguous argument that “I didn’t do it, butif I did, it wasn’t as bad as they say.” Self-represented defendants should consult theirlegal coach before deciding to make such anargument. (See Chapter 7, Section IV, formore on legal coaches.) Experienceddefense attorneys often stick with what theyconsider the stronger argument rather thanrisk alienating or confusing the jury.

Case Example: Harley Quinn is chargedwith armed robbery.

Question: Can Quinn sensibly argue boththat someone else committed the robbery(that is, that he has an alibi), and that even ifQuinn was the robber, he didn’t use aweapon and therefore should be convictedof a lesser crime?

Answer: Yes. Quinn can argue that theprosecution’s evidence is too weak to provebeyond a reasonable doubt that the robberhad a weapon. Quinn can also argue that hewas not the robber, because he was out oftown at the time it took place. The alibidefense is logically possible so long as

Quinn doesn’t claim any firsthand knowl-edge of the robbery.

8. Does the judge always have toinstruct jurors about possiblelesser crimes?

No. A judge will not give a lesser crimeinstruction unless the evidence supports thepossibility that a defendant is guilty of alesser crime. If a judge refuses to instruct ona lesser crime, then the defendant cannotargue it to a jury.

Case Example: Dr. Crippin is charged withmurdering her husband by drowning him ina bathtub. Dr. Crippin does not deny that herhusband was intentionally murdered, butclaims to have been out of town at the timethe murder was committed.

Question: Based on this defense, should thejudge instruct the jury that it may convict Dr.Crippin of the lesser crime of manslaughter?

Answer: No. The defense story gives the juryonly two choices: either Dr. Crippin commit-ted the murder, or she didn’t. No evidenceexists to support conviction of a lesser crime,so the judge will not tell the jurors about it.

9. Is it always in my interest as adefendant for the judge toinstruct the jury about a lessercrime?

No. Defendants are sometimes better off nothaving jurors consider the possibility of con-victing them of a lesser crime. For example,assume that jurors are uncertain whether adefendant is guilty of a serious charge, and


have the option of convicting the defendantof a lesser crime. After wrangling with theissue for several hours or days, jurors maycompromise by convicting the defendant ofthe lesser crime. If these same jurors had tochoose between convicting the defendant ofthe serious crime or acquitting the defen-dant, they might well choose to acquit. Inthis situation, the defendant would be worseoff because the jurors had the option of alesser charge. Therefore, whether or not toask the judge to give a lesser crime instruc-tion requires careful thought. Self-repre-sented defendants should not ask a judge togive a lesser crime instruction without firstconsulting their legal coach. (See Chapter 7,Section IV.)

10. Can the judge give a lesser crimeinstruction over an objection bythe defense?

Yes. Judges sometimes instruct jurors aboutlesser crimes on their own, regardless of thedefendant’s wishes. The reason is thatappellate courts sometimes rebuke trialjudges for not giving lesser crime instruc-tions—even when defendants request thetrial judge not to give the instructions.

11. Can I base a partial defense onsomething other than a lesseroffense?

Yes. Sometimes the seriousness of a chargedepends on the defendant’s past criminalrecord. If the defendant can invalidate a pastconviction, the defendant may be subjectonly to a lesser charge, or to a lesser punish-ment. Self-represented defendants with past

criminal records should review their recordsand the charge to determine if the serious-ness of the current charge is based in part ona past conviction. If it is, they shouldconsider arguing that the prior conviction isinadmissible in evidence (perhaps because itis too old, or because the record is errone-ous).

Section III: Self-DefenseThis section is about when a person accusedof a violent crime can legitimately claim thatthe violence was necessary for self-defense.A legitimate self-defense claim legallyjustifies an acquittal.

12. In what kinds of cases can Iargue self-defense?

Self-defense is a possible defense when thedefendant is charged with a violent crime.Typical violent crimes include:

• battery (striking someone against his orher will)

• assault with a deadly weapon

• assault with intent to commit seriousbodily injury


• manslaughter, and

• first or second degree murder.

13. Do I have to admit that I struckthe so-called victim in order touse a self-defense argument?

Yes. Inherent in the concept of self-defense isthat the defendant did strike the allegedvictim. The defense asserts that the strikingwas legally justified because the “victim”who was struck was in actuality the attacker,and was necessary to prevent the defendantfrom being physically harmed. Thus, thebasic issue in many self-defense cases boilsdown to, “Who started it?” An importantsecondary issue is whether the defendant’sviolence was a proportionate and necessaryresponse. (See Question 15.)

14. Can I claim self-defense if I hitsomeone before they hit me?

Yes. If a reasonable person would think thatphysical harm is in the immediate offing, thedefendant can use force to prevent theattack. People do not have to wait until theyare actually struck to act in self-defense.

Case Example 1: Attila and Genghis beginarguing after their cars collide. The argumentgets heated, and Attila suddenly lifts his armand forms his hand into a fist. Thinking thatAttila is about to hit him, Genghis quicklyknocks Attila to the ground and twists Attila’sarm behind Attila’s back. A police officerarrives.

Question: Should the officer arrest Genghisfor battery on Attila?

Answer: No. Under the circumstances, areasonable person would think that Attilawas about to hit Genghis. People don’t haveto wait to be hit before protecting them-selves. Thus, Genghis acted in self-defenseand is not guilty of a crime. In fact, theofficer could arrest Attila for assaultingGenghis (making Genghis fear that he wasabout to be hit).

Case Example 2: Popeye sees Blutowalking down the street. They’ve had a fewscuffles in the past. Though Bluto is payingno attention to Popeye, Popeye has a hunchthat Bluto may trip him walking by. Toprevent this, Popeye socks Bluto.

Question: Does Popeye have a valid self-defense claim?

Answer: No. The circumstances would notsuggest to a reasonable person that Bluto wasabout to attack Popeye.

15. How much force can I use inself-defense?

A defendant can use reasonable force in self-defense. How much force is reasonabledepends on the circumstances of eachsituation—particularly the amount of force asupposed victim is using against the defen-dant. A defendant who acts in self-defense,but who uses more force than is necessaryfor self-protection, is still guilty of a crime(anything from simple assault to murder,depending on how disproportionate theforce is).


Case Example: David is charged withstriking Goliath with a beer bottle. Davidclaims that he and Goliath got into a verbalargument at a lodge meeting, that Goliathgave David a light push and that David thenpicked up the beer bottle and smashed itover Goliath’s head.

Question: If the jury believes David, shouldit find that David acted in self-defense?

Answer: No. A person acting in self-defensecan only use as much force as is reasonableto prevent harm. A light push which causesno injury does not justify a beating with aglass bottle.

The Menendez Case—A FamousCase of Imperfect Self-DefenseSome states allow a partial defense known as“imperfect self-defense.” This defense reducesthe charges of defendants who use forcebecause they honestly (but mistakenly)believe that they are under attack.

In a highly publicized California case, theMenendez brothers were charged withmurder for brutally killing their wealthyparents and they relied on imperfect self-defense at trial. The brothers claimed thatthey killed their parents because the fatherhad been so abusive in the past that theyhonestly (though incorrectly) believed thattheir father was planning to kill them. Hadthe jury accepted the brothers’ imperfect self-defense, it would have reduced the crime tomanslaughter. The first trial ended in a hungjury. The Menendez brothers were convictedof murder after a second trial and sentencedto life in prison.

16. If I argue self-defense, do I haveto convince the judge or jurythat I was justified in my action?

No. A defendant who offers self-defenseevidence does not have to convince thejudge or jury that he or she was justified inusing force. The burden remains on theprosecution to prove beyond a reasonabledoubt that the defendant’s use of force wasnot justified. However, to raise the defensein the first place, the defendant has toproduce some evidence that supports hisself-defense theory.

Using Self-Defense to Expand theScope of Admissible EvidenceSelf-defense can make some evidenceadmissible that would not be admissible inthe absence of the defense. For example,witnesses cannot ordinarily testify to rumors.But a defendant who claims self-defense cantestify to any information that led thedefendant to reasonably believe that the useof force was necessary. If one factor in thatbelief was a rumor as to the violent tenden-cies of the victim, the defendant can probablytestify to the rumor.

17. If I claim that the supposedvictim of my assault attacked mefirst, will I be allowed to offerevidence showing that theattacker had been violent inthe past?

Yes. Defendants can support a self-defenseclaim with evidence that a supposed victim


was prone to violence. Of course, it’s opento the prosecution to produce evidence thatthe supposed victim was not prone toviolence. Some states (such as California) gobeyond this, and also allow the prosecutionto offer evidence of the defendant’s pasthistory of violence. In these states, defen-dants have to think carefully before offeringevidence of a supposed victim’s violent past.

Battered Wife SyndromeTraditionally, self-defense arises when defen-dants protect themselves against contempora-neous attacks. In a modern variation, womenhave argued that they acted in self-defensewhen they have struck or even killed theirmale spouses or partners—even though theirpartners or spouses were not then attackingthem. (For example, a woman might strikeher partner or spouse while he is sleeping.)

Many states now extend self-defense tothese situations. These states authorize judgesand juries to find that women have acted inself-defense when their male partners’ orspouses’ history of physical, sexual and/ormental abuse has reasonably put the womenin fear of serious harm or death in the nearfuture. Many states also allow women to sup-port their self-defense claims with testimonyfrom psychological experts who testify to thecharacteristics of battered wife syndrome.

Section IV: AlibiThis section is about when and how adefendant can produce evidence to showthat he or she wasn’t on the scene when thecrime occurred.

18. Can I offer evidence that I wassomewhere else when a crimetook place?

Yes. This is the classic alibi defense. An alibiconsists of evidence that a defendant wassomewhere other than the scene of thecrime at the time it was committed. Forexample, assume that Freddie is accused ofcommitting a burglary on Elm Street atmidnight on Friday, September 13. Freddie’salibi defense might consist of testimony thatat the time of the burglary, Freddie waswatching Casablanca at the Maple StreetCinema.

19. Doesn’t the word “alibi” implythat I’m lying?

Alibi is a perfectly respectable legal defense.Yet to some people the term connotes aphony defense. Defense attorneys usuallyare careful to remind jurors that alibi issimply a legal term referring to evidence thata defendant was elsewhere at the time acrime was committed, and that it in no waysuggests falsity.

20. Can I offer alibi evidence if Ichoose not to testify?

Yes. The defense can call whomever it wantsas witnesses. For example, a defendant whoclaims to have been at the movies withSiskel and Ebert at the time a crime wascommitted can call Siskel or Ebert or both ofthem as witnesses to testify to the alibi.


21. Do I have to convince a judge orjury to accept my alibi?

No. As is true for self-defense, defendantswho rely on alibis do have to offer evidenceto support their claims, but do not have toconvince the judge or jury that they wereelsewhere at the time the crime was commit-ted. The burden is still squarely on the pros-ecution to prove beyond a reasonable doubtthat the defendant who offers the alibi isnevertheless guilty. (Remember, however,that some jurors may erroneously think thatthe defendant takes on an affirmative burdensimply by putting on a defense case; seeQuestion 2.)

22. Do I have to notify theprosecution before trial that Iwill present alibi evidence?

Yes, in many jurisdictions. Federal courtsand many states require defendants to adviseprosecutors prior to trial of the defendants’intention to rely on an alibi defense, and tosupply the names and telephone numbers oftheir alibi witnesses. (See Federal Rule ofCriminal Procedure 12.1.) The notice provi-sions allow prosecutors to ask the police tocheck out an alibi before trial and try to dis-prove it. For example, if at trial Freddie willclaim to have been watching Casablanca atthe Maple Street Cinema at the time thecrime was committed, in many statesFreddie will have to advise the prosecutor ofhis intention to offer that evidence. The pre-trial notice gives the police time to investi-gate, and perhaps counter the defense withevidence that Treasure of the Sierra Madrewas the Maple Street Cinema’s feature filmthat evening.

Supporting an Alibi DefenseBecause some jurors may be suspicious of

an alibi defense, alibi claims should besupported with as much independentevidence as possible. For example, a defen-dant who claims to have been in anothertown when a crime was committed mightoffer evidence such as:• the testimony of a stranger who saw the

defendant in the other town• a receipt for the purchase of gasoline or

another item

• evidence that the defendant had apreexisting appointment to be in the othertown.

Section V: InsanityThis section is about when and how adefendant can claim insanity as a defense toa criminal charge.

23. Why do we allow a guiltydefendant to be found not guiltyby reason of insanity?

The insanity defense is based on the prin-ciple that punishment for serious crime isjustified only if defendants were capable of


controlling their moral behavior and couldappreciate the wrongfulness of their behav-ior at the time the crime was committed.Insane people (people suffering from amental disease) are not moral actors, thereasoning goes, and so should not becriminally punished for acts committedbecause of the insanity.

The Insanity DefenseRemains ControversialThough the insanity defense was recognizedin England as early as 1505, it remainscontroversial. Many people point out that aperson killed by an insane person is just asdead as one killed by someone who is sane,and argue that people should be punished forthe harms they cause regardless of theirmental functioning. Opponents of theinsanity defense also doubt the competenceof psychiatrists, judges and jurors to deter-mine after the fact whether someone sufferedfrom a mental disease at the time the crimewas committed, and the connection, if any,between mental disease and the commissionof crime. Perhaps due to popular dissatisfac-tion with the insanity defense, few defendantsactually rely on it. And of the defendants whodo, very few are actually found not guilty byreason of insanity.

24. What is the most widely useddefinition of insanity?

The most popular definition is the“M’Naghten rule,” established in England inthe 1840s. Under the M’Naghten rule, de-fendants are not guilty by reason of insanity

if at the time of a crime they were unable todistinguish right from wrong.

Case Example: Bentley and Craig arecharged with murder after Craig kills a policeofficer who interrupts Bentley’s and Craig’sattempt to rob a warehouse. Bentley’sevidence shows that Bentley is mentallyimpaired; a head injury that Bentley sufferedas a young child has left him with the mentalability of an eight-year-old. Also, Bentleydidn’t think that Craig should try to steal, butwent along with Craig so that Craig would behis friend.

Question: If the jury believes Bentley’sevidence, should it find Bentley not guilty byreason of insanity?

Answer: No. To be considered insane inmost states, a person has to be unable todistinguish right from wrong. Since Bentleyknew that it was wrong to steal from thewarehouse, the jury should conclude that hewas sane. However, Bentley could have apartial defense. The jury could also concludethat Bentley’s mental impairment renderedhim incapable of forming an intent to kill, sothat Bentley should be found guilty only ofmanslaughter. (See Question 5.)

25. Do courts use other definitionsof insanity (besides theM’Naghten rule)?

Yes. Courts within the same state may usedifferent definitions of insanity. A defendantwho is not insane under one definition maybe insane under another. For example, an-other common definition of insanity ac-cepted in some states is known as “irresist-ible impulse.” (This defense was the focus of


the famous courtroom movie Anatomy of aMurder.) Defendants who acted because ofan irresistible impulse knew that their ac-tions were wrong, and thus would be con-sidered sane under the M’Naghten rule.However, they may still be considered in-sane under the irresistible impulse rule if atthe time of the crime they were afflicted witha mental disease that rendered them unableto control actions that they knew werewrong.

26. If I’m found not guilty by reasonof insanity, will I be set free?

Probably not. Defendants found not guiltyby reason of insanity usually are confined tomental institutions, and not released until acourt determines that whatever insanity theyexperienced at the time of the crime is nolonger present. Because judges do not wantrepeat performances from insane defendants,a defendant found not guilty by reason ofinsanity can easily spend more time in amental institution than the defendant wouldspend in prison had the defendant beenconvicted of the crime.

27. Can defendants be found bothguilty and insane?

Yes. Many states follow a “guilt first” proce-dure. In these states, a defendant’s sanity isnot determined until after a defendant hasbeen found guilty of a crime. Then, if a

defendant is found to have been insanewhen a crime was committed, the defendantis placed in a mental hospital. When (and if)the defendant’s sanity is restored, thedefendant goes to prison to serve anyremaining time on the sentence.

28. Do I need a psychiatrist to testifythat I was insane?

In almost all cases involving insanity, yes.When a defendant enters a plea of not guiltyby reason of insanity, a psychiatric expertexamines the defendant on behalf of thedefense. The psychiatrist’s investigation willnormally include the circumstances of thecrime, the defendant’s past history and oneor more personal interviews of the defen-dant. The prosecutor can, and usually will,request that the defendant be examined by agovernment psychiatrist. It is not unusual inthis kind of case to see the two learnedexperts emphatically disagree on just abouteverything (which causes some to questionwhether psychiatry is an exact enoughscience to be used as expert testimony in thefirst place).

29. I’m indigent—how can I affordto hire a psychiatrist?

Judges appoint psychiatrists at governmentexpense to assist indigent defendants whocannot afford to hire psychiatrists.


Friends and Relativesas Defense WitnessesJurors tend to be suspicious of defensemedical experts who pronounce a defendantinsane based on a conversation or two and areview of records. The strongest evidence ofinsanity is often provided by friends andrelatives who have known the defendant longenough to form a reliable opinion that thedefendant is mentally ill. Most jurisdictionsallow nonexpert witnesses to give an opinionregarding the sanity of a person with whomthe witness is well acquainted.

30. Do I have to convince the judgeor jury that I was insane?

Probably. In most states and in federal court,defendants do have the burden of convinc-ing a judge or jury of their insanity. Nor-mally, the defendant’s burden is to proveinsanity only by a preponderance of theevidence, the lower burden of proof com-monly used in civil cases. However, somejurisdictions make things even harder fordefendants by requiring them to proveinsanity by clear and convincing evidence, aburden of proof somewhere in between thelower preponderance and higher beyond areasonable doubt standards.

31. Do I have to notify theprosecution before trial that Iwill present an insanity defense?

Yes. As with the alibi defense, pretrial rulesin many jurisdictions require defendants toadvise prosecutors prior to trial that they will

rely on an insanity defense at trial. (SeeFederal Rule of Criminal Procedure 12.2.)Prosecutors often respond by demandingthat a defendant be examined by a govern-ment psychiatrist before trial.

Competence to Stand TrialWhether or not a defendant pleads insanity asa defense to criminal charges, an issue canarise as to a defendant’s sanity at the time oftrial. A defendant cannot be put on trial if shesuffers from a mental disease that preventsher from understanding the proceedings andassisting in the preparation of the defense. If adefendant claims incompetence to stand trial,a judge will hold a hearing and take evidenceconcerning the defendant’s current compe-tence. At this hearing, the defendant has theburden of proving incompetence to stand trialby a preponderance of the evidence. (Cooperv. Oklahoma, U. S. Sup. Ct. 1996.) If thejudge decides that the defendant is mentallyincompetent, the defendant will probably beplaced in a mental institution until compe-tency is reestablished. At that time, the trialwill be held.

One good but extreme example of howcompetency to stand trial works involves thealleged mob boss Vincent “The Chin”Gigante, who was indicted for a variety ofcrimes including murder, mail fraud and ex-tortion. Gigante claimed that he was incom-petent to stand trial, based in part on evi-dence that for years his life consisted only ofwandering around the block where he livedin pajamas and a bathrobe. In 1996, a federaljudge ruled that Gigante had engaged in anelaborate deception for over 20 years andordered him to stand trial. Gigante reportedlytold other mobsters that “pretending to becrazy just wasn’t worth it.”


The Partial Defense ofDiminished CapacityDiminished capacity is a partial defense akinto insanity. Where it is allowed, diminishedcapacity can reduce the criminal responsibil-ity of defendants whose acts are the result ofmental defects that fall short of the legaldefinitions of insanity. Diminished capacityplayed a central role in an important Califor-nia trial in the early 1980s, when a juryaccepted a diminished capacity defense andconvicted Dan White of manslaughter forkilling San Francisco Mayor George Mosconeand Harvey Milk, an openly gay countysupervisor, in San Francisco. White relied onthe so-called “Twinkie defense,” claiming thateating food high in sugar content had left himtemporarily unable to control his actions. Theverdict so aroused the public’s anger thatCalifornia outlawed the diminished capacitydefense (Penal Code Sec. 28-b); many otherstates have done likewise.

Section VI: Intoxication(Under the Influence ofDrugs or Alcohol)Defendants do not have a constitutionalright to offer an intoxication defense.(Montana v. Egelhoff, U.S. Sup. Ct. 1996.)This section explains why the voluntaryingestion of alcohol or drugs does notusually excuse a defendant from resultingcriminal behaviors.

32. Can I use the fact that Icommitted a crime because I gothigh on drugs or alcohol as adefense?

No. Defendants know (or should know) thatalcohol and drugs affect their ability tocontrol their behavior. Therefore, voluntaryintoxication is rarely a complete defense to acriminal charge. (It may be a partial defense;see Question 33.) Defendants who voluntar-ily consume alcohol or drugs, and becauseof that engage in criminal conduct, may bejust as subject to punishment as defendantswho commit crimes while stone cold sober.

Case Example: Frank Lee is charged withattempted rape of Kay Dence. Lee claimsthat he had been drinking heavily at a partyon the night of the attempted rape, and thathis mental functioning was so impaired bythe effects of alcohol that he lost control andattacked Dence.

Question: If believed by a judge or juror,would Lee have a valid defense to thecharge?

Answer: No. Lee cannot escape punishmentby claiming that his actions were the result ofintoxication.

33. If I commit a crime because I gethigh on drugs or alcohol, mightthat qualify me for a partialdefense?

In some states, voluntary intoxication canserve as a partial defense to crimes requiringa prosecutor to prove that a defendant actedwith a specific intent. The intoxication doesnot entirely excuse the defendant’s crime.


But if intoxication produced mental impair-ment that rendered a defendant unable toform the required specific intent, the defen-dant can be convicted of a lesser crime.(Like insanity, this defense must usually besupported with medical or psychiatrictestimony.)

Case Example: Buck Shot is charged withassault with intent to commit murder. Theprosecution claims that Buck shot at VicTimm with the intention of killing Timm, butmissed. Buck admits firing the shot, butclaims that he had no intention of killingTimm. Buck claims that about an hour beforethe shooting he’d ingested an illegal drugthat so impaired his mind that he wasincapable of forming an intent to kill Timm.

Question: Might Buck have a partialdefense to the charge?

Answer: In some jurisdictions, yes. Theprosecution has charged Buck with a crimewhich requires the prosecutor to prove thatBuck had a specific intent to kill Timm. If,because of drug consumption, Buck wasincapable of forming an intent to kill, thenBuck should be found guilty of a lesser crimesuch as assault.

Intoxication Defense Rules VaryRules governing the intoxication defense

vary greatly from state to state. For example:• Hawaii: Voluntary intoxication can serve

as a defense to any crime requiringspecific intent. (Hawaii Revised StatutesSec. 702-230(1) (1976).) California law issimilar. (Cal. Penal Code Section 22(b).)

• Virginia: Voluntary intoxication is adefense only in murder cases. (Griggs v.Commonwealth, 220 Va. 52,1979.)

• South Carolina: Voluntary intoxication isnot a defense to any criminal charge.(State v. Vaughn, 268 S.C. 119, 1977.)Because the rules vary greatly and can

change quickly, self-represented defendantswho hope to rely on a voluntary intoxicationdefense must discuss the matter thoroughlywith their law coaches. (See Chapter 7,Section IV, for more on law coaches.)

34. Can I go free if I commit a crimebecause I involuntarilyconsumed drugs or alcohol?

Yes. Defendants sometimes through no faultof their own consume drugs or alcohol, andlose the ability to control their behavior. If ajudge or jury agrees that a defendant con-sumed drugs or alcohol involuntarily, andbecause of the resulting mental impairmentcommitted a crime, the defendant should befound not guilty.


Section VII: EntrapmentThis section explains the circumstanceswhen a defendant may properly claim thatthe only reason he or she committed a crimewas because the police led him or her intoit.

35. Am I guilty of a crime if agovernment agent talks me intocommitting it?

No. The government cannot induce adefendant to commit a crime, and thenpunish the defendant for committing it.However, if a judge or jury believes that adefendant was predisposed to commit thecrime anyway, the defendant is guilty even ifa government agent suggested the crime andhelped the defendant to commit it. Entrap-ment defenses are therefore pretty difficultfor defendants with prior convictions.

Case Example 1: Solely on the basis of astatement made by a confidential informant,a police officer suspects that Hy Poe is adrug dealer. Wearing a concealed videorecorder, the officer tries to buy illegal drugsfrom Hy. Hy refuses to sell any drugs, andclaims to know nothing about drugs. Theofficer repeatedly pleads with Hy to selldrugs, indicating that the officer needs thedrugs to treat a medical condition. Hy saysthat he thinks he knows someone who canprocure drugs, and arranges to meet theofficer an hour later. Hy returns in an hour,offers to sell the drugs to the officer and isimmediately arrested.

Question: Would a jury be justified inconvicting Hy of selling illegal drugs?

Answer: Probably not. A judge or jurywould be justified in concluding that theofficer entrapped Hy by inducing Hy tocommit a crime that Hy would not otherwisehave committed.

Case Example 2: Same case. When theofficer approaches Hy to buy illegal drugs,Hy replies that “this isn’t a good place—wecould be under surveillance from cops.” Theofficer convinces Hy to conclude the drugdeal in a secluded alley. The officer thenarrests Hy.

Question: Is Hy guilty of selling illegaldrugs?

Answer: Yes. The officer talked Hy intoselling the drugs, but Hy was evidentlypredisposed to the sale under the rightcircumstances. A judge or jury would bejustified in convicting Hy.

36. Do I have to convince a judge orjury that I was entrapped?

Yes. Defendants who claim that they wereentrapped into committing illegal actsnormally have the burden of convincing ajudge or jury (by a preponderance of theevidence) that they were induced to commitcrimes that they were not predisposed tocommit.


Section VIII: JuryNullificationThis section explains that juries are notsupposed to ignore the judge’s instructionsbut do so on occasion when they feel thatjustice requires it.

37. Does a jury have the power tofind me not guilty no matterwhat the evidence against me?

Yes. Jurors, not prosecutors, judges or policeofficers, have the ultimate power to decidewhether a defendant is guilty. As the con-science of the community, jurors can acquita defendant even if they think the defendantreally did it. When jurors nullify a law byacquitting a defendant who has obviouslybroken it, judges and prosecutors can donothing about it. A jury’s not guilty verdict isfinal.

Case Example: Mother Hubbard is chargedwith child abuse for using a switch on herten-year-old child, leaving welts on thechild’s arms and legs. Mother Hubbardtestified that she used the switch only after

trying many nonphysical punishments andseeing her child still on the verge of gettinginto gangs and drugs. The jury acquitsMother Hubbard. Jurors tell the judge thatwhile they believed that Mother Hubbardused excessive force on her child, under allthe circumstances it would be unjust toconvict her of a crime.

Question: Will the jury’s verdict stand?

Answer: Yes. As the community’s ultimateconscience, the jurors have the power todecide that Mother Hubbard is not guilty.Their not guilty verdict is final.

Judges and NullificationJudges have the same power to nullify a lawwith a not guilty verdict. However, defen-dants who hope for a nullification outcomenormally choose jury trials in the belief thatjurors will be more sympathetic and feel lessbound by the law.

38. Can the defense argue nullifica-tion to the jury as a defense?

No. The defense cannot explicitly ask jurorsto nullify the law. For example, a judgewould quickly silence a defendant who said,“Jurors, I was only trying to protect mycommunity against a poisonous wastedump. You should find me not guilty even ifyou think I did break the law.” In fact, judgesdo not instruct jurors about their nullificationpower. Jurors who might consider a nullifica-tion verdict have to realize on their own thatthey have the power.


Evidence That May Leadto NullificationWhile defendants cannot offer a nullificationdefense, they can sometimes present a casein a way that leads jurors to considernullification on their own. Cases that result innullification often have these characteristics:

• The defendant acted out of strong moralconvictions shared by jurors. For example,a defendant acted out of a desire to closea toxic waste dump, and jurors believethe goal to be legitimate.

• Evidence portrays a defendant in a sympa-thetic light. For example, jurors may sym-pathize with a defendant who broke thelaw trying to close a toxic waste dumponly after making a number of legal ef-forts. (Note: Any sympathy evidence mustbe relevant to a valid defense. Judgesdon’t admit evidence simply because itmay arouse sympathy for a defendant.)

• Evidence arouses jurors’ hostility to thegovernment. For example, jurors may behostile to police officers who were tooaggressive when arresting a person en-gaged in a peaceful but illegal protest.

• The defendant is not charged with a crimeof violence.

39. What are the two most commonsituations in which a jury mightnullify a law?

Jurors might consider a nullification if:

• The jurors believe a law to be politicallyunjust. For example, during VietnamWar protests in the 1970s, some jurorsrefused to convict war protestors whowere charged with criminal trespassbecause they thought that a law banningnonviolent protests was unjust. In morerecent times, jury nullification hasoccurred when defendants who nonvio-lently protest nuclear testing or toxicwaste dumps are charged with crimes.

• The jurors believe that a valid law isbeing unjustly applied. For example, inthe film A Time to Kill, jurors acquittedan African-American father of murderafter the father killed the two men whohad brutally raped his daughter. Thejurors did not consider the murder lawitself unjust. Instead, the jurors thoughtthat it was not fair to apply that law tothe father’s conduct.

40. Should I turn down a good pleabargain and hope for jurynullification?

No. Defendants who rely on jury nullifica-tion are usually disappointed. Jurors almostalways limit their deliberations to whether adefendant committed the charged crime.Political overtones and feelings of sympathyor hostility notwithstanding, jurors rarelyacquit a defendant they think is guilty ascharged. !

defensespeak: common defenses to criminal charges defenses.pdf... · 14. can i claim self-defense...

Documents