Defenses to the charges are always an appropriate area to explore and raise early in the litigation process.
Some of them will require special documents to be filed and witnesses to be listed in a timely fashion or they will
be deemed waived by the Court. Examples of defense claims that will need to be proved affirmatively at
trial in order to be complete defenses and that raise other considerations for the Defense include:
“The police got me to sell drugs I
didn’t even want to do!”
“Sure, I broke in and shot the man, but
I had been drinking whiskey all day.
I got myself so drunk that I didn’t know what I was doing!”
“I did it because those guys were going to kill me and my wife if I didn’t!”
Scenarios depicting some of these less frequently raised
defenses are presented so you can better understand the terminology and significance of these affirmative defenses.
An affirmative defense is one that must be disclosed to the prosecution before trial and it requires the Defense to
offer proof through testimony or real (physical) evidence at trial.
A teenager walks home from school every day. He never has done drugs or alcohol. One
day a brand new fancy car pulls up. The driver is dressed in the latest style of expensive clothes.
He has plenty of cash. He begins describing to the teenager how he got into a new business and now,
after only a couple of weeks, he is rich. In the backseat are two gorgeous girls dressed with the latest
fashions. “I have an opportunity to share only with you,” he says. The teenager
is going home to an old, rundown trailer and may not have much to eat as his grandmother cares for him and has no money.
Here the teenager who would have never thought about selling drugs is being enticed to commit a crime using emotional
If the driver of that
car is a police officer, this could be the basis of an entrapment defense. Entrapment
is inducing, enticing or encouraging a person to perform an illegal act which they never would have done it but for the recruitment.
The defendant is entrapped if:
he/she was induced to commit a crime that otherwise he/she would
have never committed; and
engaged in the criminal conduct as a direct result of the
the inducer is a law enforcement officer or a person cooperating
with the police.
Entrapment is another
defense where the jury is told that the defendant did indeed commit the crime (i.e. delivered the cocaine). However,
that defendant would not have done it if the police hadn’t recruited him/her.
The Defense attorney must fully develop the surrounding facts
tying the police activities into the enticement of the defendant. If he was predisposed to sell drugs and
was actively asking around how to get some cocaine to sell to his known buyers when he met up with the cop, then there would
not be any entrapment.
Before discussing the voluntary intoxication
defense, it should be noted that most states have done away with it by statute. Historically, when
the defendant was charged with a specific intent crime and had chosen to get himself extremely intoxicated,
this factor could negate the specific intent element of the crime. In other words, voluntarily getting
intoxicated could work as a complete defense.
For instance, let’s say the defendant is charged with battery. Battery
occurs when the defendant “intentionally touches or strikes the victim against his will.” This
is a specific intent crime meaning that the State must prove that the defendant intended to touch or strike
as an essential element of its case in chief. Where the defendant has gotten himself so drunk that he couldn’t
even put one foot in front of the other, how can the State prove he intended anything? Theoretically, it
cannot. Since the State cannot prove this essential element of the crime, they cannot prove the case beyond
reasonable doubt. Therefore, voluntary intoxication is a complete defense to the crime
of battery. The same analysis holds for any crime that requires the State to prove that the defendant intended
to do the act.
A victim might
testify that the defendant didn’t need to drink an entire fifth of whiskey and take two Valium pills. He
did it of his own accord. He intended, if you will, to get himself drunk. He proceeded
to beat the victim within an inch of his life. What if the intent was a premeditated design
to kill the shop keeper in an intentional murder case? Should the defendant’s voluntary
drinking and drug spree be a defense? Should he be favored by his own wrongful act? The
various State legislatures don’t think so today. Voluntary intoxication as a complete defense is
an item of legal history.
Duress or Necessity
“I am telling you officers, I would never have committed
this crime except that Billy held a gun to my head and Bobby had my child tied up in the field out back.”
Sounds like duress. Sounds like a complete defense. Did the
defendant act out of duress or necessity in committing the crime? The
judge will instruct the jury, “It is a complete defense to the crime (i.e. forgery of documents) if the defendant acted
under duress. In order to find duress the jury must consider these six elements:
ü Defendant reasonably believed a danger existed which he did not cause;
That danger threatened significant harm to himself or others;
ü The threatened
harm must have been real, imminent and impending;
ü There was no way to avoid the danger but by committing the crime;
The crime must have been committed out of duress to avoid the danger;
harm avoided must have been greater than the harm of the crime committed.
It can easily be understood how tough it is to prove the elements of duress
in order to be in a position to argue that the only reason the charged crime was committed was because the
defendant was under duress. Once proven, duress is a complete defense to the crime charged.
· Independent Act
Three guys drive to the supermarket. The driver remains with
the car because all of the parking spots are taken. The other two go inside and begin to shop.
They get bread and cold cuts and beer and push their cart to the line. While one is paying for the
party items the other pulls out a gun and robs the checkout clerk of $347. What do you think the driver
and the party pack purchaser will argue when they are charged with the armed robbery? Will they say, “Hey,
we were just shopping. We had no idea that Buster had a gun. We never discussed robbing
the money and had no idea what he was up to.”
In this trial, the judge will instruct the jury that they must consider whether the act of Buster’s
action was an independent act where he acted on his own. If the defendant raising this
defense can show three things, he must be found not guilty. If the defendant raising this defense can show
three things that form an independent act, he must be found not guilty. These include:
defendant did not intend this crime to occur;
ü This defendant did not participate in the criminal act;
This criminal act was not a reasonably foreseeable act
contemplated by this defendant.
of an independent act is a complete defense to the crime charged.
In summary, four of the less frequently raised affirmative defenses
that might be raised by the Defense in an appropriate case are: entrapment, voluntary intoxication, duress
and independent act. Remember, in order to be able to argue at closing argument that one
or more of these defenses apply, the Defense Attorney must be able to point to specific facts supporting these defenses from
the record of the case. If the Defense proof is strong enough, the Court may give a directed verdict in
the form of a Judgment of Acquittal either at the close of the State’s case or at the close of all of the evidence.