What are the main 7 Procedural Defense

Matt Pinsker

February 16, 2023

Procedural Defenses

Procedural defenses challenge the state’s ability to bring a case against a defendant for some reason. They point to some problem in the process or the state’s lack of authority to bring the case rather than facts surrounding the crime or the criminal. They include double Jeopardy, speedy trial, entrapment, and several types of immunity. They also include prosecutorial misconduct.


In the law, notice is information given to someone that alerts them of something happening or to is done. It can be a verbal or written statement.

An individual or an attorney can issue a notice. It may be sent to the court or all parties involved in a legal matter.

A notice is an integral part of a legal procedure and confirms that the party will participate in the proceedings. It also contains the details of what is going to happen and when.
Lack of Intent

A defendant’s criminal responsibility depends on both actus reus (action) and men’s rea (“guilty mind”). The prosecution must prove that the defendant committed the crime with the intent to commit it.

Intent can be defined as a desire to achieve a particular result or as knowing the likelihood of harm. Typically, the act and the criminal intent must exist at the same time to satisfy this element of the crime.

Involuntary Intoxication

Involuntary intoxication is one of the 7 procedural defenses that can be used by a defendant charged with a crime. The defense argues that the intoxication prevented the defendant from forming the intent required for the charge.

Involuntary intoxication is often a viable defense for crimes with specific intent requirements, such as assault or driving under the influence. However, it does not apply to strict-liability crimes (where proof of men’s rea is not required).

Double Jeopardy

Double Jeopardy bars prosecutors from trying you twice for the same offense, which applies even if the prosecutor has a strong case. For example, if you were acquitted of murder charges in state court but later were convicted of the same charge in federal court, the double jeopardy rule prevented the government from bringing a civil case against you.

The rule also bars the government from retrying you after a conviction or acquittal for the same charge and prohibits the government from imposing more than one punishment for the same offense. For these reasons, hiring an attorney who knows your rights and can use the defenses mentioned above to protect you at trial is essential.

Statute of Limitations

In civil law systems, statutes of limitations limit the amount of time a person may pursue legal claims. These laws are meant to protect would-be defendants from unfair legal action, primarily because evidence often becomes lost or obscured over time, and witnesses’ memories can grow fuzzy.

Many states have statutes of limitations for certain crimes, such as murder. However, some don’t, including treason and embezzlement.


Entrapment is the act of a government agent, or official inducing a person to commit a crime they would not have committed were it not for the persuasion or coercion of a law enforcement officer. It is a defense to criminal charges that requires a defendant to prove four elements:

The defendant must show that the officer used a tactic or method that would likely induce a normally law-abiding person to commit a crime. This is called “objective entrapment.” It is a more specific standard and tends to be more successful than subjective entrapment.

Prosecutorial Misconduct

Prosecutors have a great deal of power and responsibility. They must adhere to strict standards of conduct and professional ethics to put criminals behind bars.

One of the most common types of prosecutorial misconduct is the improper disclosure of evidence to the defense during a trial. This violates the defendant’s Constitutional rights to Due Process of Law and a fundamentally fair trial.

Sanctions for prosecutorial misconduct include appellate reversals of convictions, finding a prosecutor in contempt of court, referring a prosecutor to a bar association grievance committee, and even removing a prosecutor from office. However, many cases where misconduct is alleged or found are resolved before trial, often by plea bargaining, case diversion, or other non-trial resolutions.