Criminal Defense Strategies

In most criminal proceedings, these defenses are frequently used:

Insanity Defense

The insanity defense can vary between jurisdictions and is not the same as being labeled mentally ill. If the defendant claims insanity, they are arguing that they were not sane at the time they committed their crime and they should not be held criminally liable for the crimes they committed.

The defendant is evaluated by a healthcare professional to determine their mental state at the time of the crime. Some jurisdictions simply require the defense to prove that the defendant did not know right from wrong at the time the crime was committed. Other jurisdictions may determine an individual is insane even if they knew right from wrong but were unable to control their behavior due to their mental state. If the defendant is declared not guilty by reason of insanity they are often sent to a mental hospital for extended treatment.


Intoxication may be a defense for some crimes if it renders an individual incapable of specific intent to commit a crime. For example it might reduce murder to a manslaughter charge especially if the intoxication was involuntary.

Mitigating Factors

Mitigating circumstances are conditions that may influence an individual who committed a crime. Even if mitigating circumstances exist, they do not eliminate an individual's guilt. A judge may, however, use these circumstances to help determine the punishment for the crime.

Mitigating circumstances may exist in certain insanity cases if the defendant is not able to argue the insanity defense. In some cases they may be able to show a diminished mental capacity which caused their judgment to be impaired. Diminished capacity as a mitigating circumstance could also include drug or alcohol intoxication. These mitigating factors may be used to help argue that their sentence should be reduced.


Coercion could arise if the individual committed a crime while under duress. Duress is not usually a defense for the most serious crimes of murder, treason or attempted murder. To form the defense of duress or coercion an individual must believe their life or that of another individual is in immediate peril. Courts have often evaluated this defense based on what other individuals in similar situations with similar characteristics would have done. The courts have considered a defendants physical disabilities, pregnancy, sexuality, and age.

An example of coercion could arise if an individual is forced to commit a robbery while his life is being threatened. The duress or coercion must be for a specific event.


Self-Defense can be argued if an individual behaves in a reasonable way to protect themselves from harm. In many instances if self-defense is proven there is not a crime at all. To argue self-defense the force an individual uses to defend themselves must be proportionate to the threat against them. For instance, if someone yells at you and you shoot them you would not be able to argue self-defense because your life was not immediately threatened. Some jurisdictions also may require an individual to retreat if possible instead of engaging in a confrontation.


Entrapment is when an individual is persuaded by an agent of the government to commit a crime that they previously had no intention of committing. It is not considered entrapment, however, if the individual was willing to commit the crime and the government agent merely provided the opportunity. For example, a police officer can pretend to be someone else in order to arrange an unlawful transaction. If at this time the individual is ready and willing to commit a crime it is not entrapment.

It is entrapment if the idea to commit the crime came from the government agents, the agents talked the person into committing the crime, and the victim had no intention of committing the crime prior to communicating with the government agents.


If a statute is considered to be so vague that a reasonable person is unclear of the meaning of the law or the law may be arbitrarily enforced an individual may be able to argue they are innocent of the charges against them because of "vagueness". This defense has arisen in recent years when applied to laws defining "lewd" conduct, racial profiling, or loitering statutes. The courts generally determine if the statute could have been written more precisely.

Defense of Property

Individuals may use the defense of property to argue they are not guilty of loss or injury to trespassers. Jurisdictions vary on the amount of force that may be used to defend one's property. Some jurisdictions allow lethal force but others only allow lethal force if it is necessary to defend yourself or if you feel your life is threatened. The use of booby traps is not allowed and the use of dangerous animals may also be prohibited.

Do I Need a Criminal Defense Attorney?

The Penal Code and the criminal process are very complex. If you have been charged with a crime and are facing a large fine or prison sentence it is a good idea to seek a criminal defense attorney to advise you on the next step to defend yourself.

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