3 Different Types of Criminal Defenses

Matt Pinsker

March 29, 2023

Criminal Defenses

There are many different defenses to a criminal charge. Each defense requires a different strategy for legal representation.

In addition to traditional defenses, such as self-defense and insanity, there are also affirmative defenses. These are based on facts that do not come from the prosecution.

Self-Defense

Self-Defense is a legal defense that allows people to use force against an attacker who poses an imminent threat of severe physical harm. It also requires the force used to be proportional to the threat posed.

Claiming self-defense is possible when a threat is imminent, and there is no other way out. If the threat has already ended, an act of self-defense would be considered retaliation rather than self-defense.

Insanity

Insanity is a defense that may be used in criminal cases.┬áIn the United States, insanity is a legal defense allowing defendants to argue that they were not responsible for their crimes because of a mental disorder. Most jurisdictions follow the M’Naghten test to prove insanity. Some have adopted a substantial capacity standard. Some also adopt an irresistible impulse defense.

Defense-of-Others

Defense-of-Others is a type of criminal defense that can be raised if you use force to protect someone from another person who threatened or used force against them. This differs from self-defense, which protects you from an unprovoked and imminent attack.

Before a claim of defense-of-others can be made, the defendant must prove that they reasonably believed the threat was real and that force was necessary to prevent it. In addition, the defendant must use no more force than was reasonable to defend against that threat.

Defense-of-Property

Defense-of-Property is a type of criminal defense that allows an individual to use reasonable force to protect their property. This includes using force to regain possession of their property or remove a trespasser after the trespasser refuses to leave.

To use this defense, the defendant must believe their property is in danger of being damaged, destroyed, or stolen. They must also believe they could not have stopped the damage or theft without using physical force.

Apparent Consent

Apparent consent, or implied consent, is a defense against certain intentional torts. It can negate assault, battery, and trespassing crimes.

This defense can also be raised against sexual assault and rape.

It occurs when a principal, such as a corporation, indicates to a third party that an agent or officer has the authority to act on their behalf. Generally, this occurs through words and conduct that, if reasonably interpreted, cause another person to believe they have apparent consent to the agent’s actions.

Entrapment

Entrapment occurs when a law enforcement officer persuades or intimidates someone to commit a crime they would not have otherwise committed. This occurs in various ways, including threats, harassment, fraud, or extended coercion.

A successful and valid entrapment defense requires two elements: inducement of the crime by government agents and the defendant’s lack of a predisposition to commit the crime. States have different evidentiary standards for proving these elements.

Mistake of Law/Mistake of Fact

A mistake of law or fact is a defense that a person may use to challenge certain charges. These defenses work by arguing that the accused did not possess the mental state or “men’s rea” needed for the crime to be committed.

Mistake of fact defenses can be available in various cases but must be reasonable to be valid. In addition, they cannot be used in a strict liability crime, where the act of crime is all that is required for a defendant to be convicted.