by Ira Still, Esquire
South Florida Criminal Defense Lawyer

Understanding Court Procedure:
Raising Major Defenses

  Defenses to the charges are always an appropriate area to explore and raise early on 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.  The defenses listed below are general denials and are always open to be argued by the Defense at trial.

             “I didn’t do it!” 

             “The State can’t prove a case against me beyond reasonable doubt!”

             “No crime was even committed!” 

Specific defenses that will need to be proven affirmatively at trial in order to be complete defenses raise other considerations for the Defense.  Examples of these are discussed so that you can better understand the terminology and their significance.   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.

    ·        Alibi 

To many people the word “alibi” implies a trick thrown in just to “beat the rap.”  It is often thought of as being any excuse, a connotation that trial attorneys need to dispel.  An astute trial attorney will address this during jury selection so that the true meaning of the word alibi is clear in the minds of potential jurors.  He/she should emphasize the meaning as defined in Webster’s Dictionary, “in law, the plea or fact that an accused person was elsewhere than at the alleged scene of the offense with which he is charged.”  The law recognizes that if a home invasion occurs in Miami but the defendant was in Chicago, that he has a true Alibi defense and clearly is not guilty.   

The rules require the defendant to file a Notice of Alibi no later than 10 days prior to trial.  That notice must reveal the names of all witnesses that the Defense may call to prove the alibi.  If there are any documents that would prove the defendant was in Chicago and not in Miami at the date and time of the alleged crime, copies must be given to the prosecutor.  These documents might include hotel receipts, airplane receipts, meeting agendas, etc.  Producing these will give the prosecution an opportunity to drop the charges before a costly and time consuming trial. 

Like all affirmative defenses, Alibi is a complete defense.  The jury will be instructed that, if they find that the defendant was not present when the crime was committed (had an alibi), then it is the jury’s duty to find the defendant not guilty.

     ·        Self-Defense {Justifiable use of Force} 

A man walks out of the movie theatre with his date.  They almost get to their car when three guys appear.  One swings a tire iron at the gentleman who quickly ducks, causing the attacker to lose his balance.  As he does, the gentleman grabs the tire iron and hits the attacker on the head knocking him unconscious.  The other two would-be attackers run off.   The gentleman waits for the police and describes the event.  Did he act in a justifiable way to protect himself and his girlfriend?  What happens if the unconscious attacker is pronounced “dead on arrival” of the paramedics?   

The law recognizes that a person is justified in using force against another when he reasonably believes that such conduct is necessary to “defend himself or another person against the attacker’s imminent use of unlawful force.”  In many states, including Florida, a person is justified in using deadly force and does not have a duty to retreat.  He can stand his ground against an attacker.  He is justified in using deadly force to prevent imminent death or great bodily harm, or to prevent a forcible felony such as robbery or rape. 

In addition, force is justified in defense of your home and (to an extent) in defense of other persons.  There is (in Florida) no duty to retreat provided you are in a place where you have a right to be.  In these cases, the law makes self-defense a complete defense to a crime of wrongful violent attack.  Of course, the Defense Attorney must affirmatively prove certain underlying facts at trial to sustain his argument that this case involved self defense.

     ·        Insanity 

An issue might arise during a case regarding the defendant’s sanity during the time the crime was committed.  This will require affirmative proof much of which will be from mental health professional expert witnesses.  There is a two-part test in determining if the defendant was insane.  First, can it be proven that the defendant had a mental infirmity, disease or defect?  You might expect long testimony by several experts as to conditions such as bi-polar disorder, schizophrenia, or other quantifiable disorders and how they might be affected by lengthy alcohol drinking or cocaine, lack of sleep, food and water deprivation, etc.  Once these conditions are defined and described, however, there is more that is required in terms of proof. 

Second, directly related to this disorder, can it be proven that the defendant did not know what he was doing or that he didn’t realize the consequences?  Even if he did know what he was doing and realized the consequences, did he know it was wrong? 

The law presumes people to be sane.  This means the burden is on the Defense to prove the defendant was “not sane” or “insane.”  It is an incredible burden to prove insanity.  What the lawyer is telling the jury is that, “Everything the State says happened actually did happen—it is all true.  However, you should not find him guilty of it because he was insane when he did it.”  The murder or the rape of the child occurred, but you should find him the defendant not guilty by reason of insanity.   

If the jury’s verdict is not guilty by reason of insanity, the Court will have jurisdiction over the defendant for the entire duration of the permitted sentence had he been found guilty.  Instead of sentencing him to state prison, the Judge will place him in a psychiatric lock-down facility.  The conditions of such a facility are far worse.  The Defense cannot describe this to the jury directly during trial.  For this reason jurors think that an insanity verdict means the defendant will simply walk out of the courtroom and onto the streets.  As you can tell, the defense of insanity is very difficult to prove successfully.  It is generally reserved for only the most difficult cases such as first degree murder or death penalty litigation. 

In this article we have discussed the three major affirmative defenses that might be raised by the Defense in an appropriate case.  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.

© 2010.  The Law Offices of Ira Still