Who is Responsible for the Defense of the Accused?

Matt Pinsker

December 28, 2022

Defense of the Accused

One of the most controversial questions in the legal world is who is responsible for the defense of the accused. The answer to this question needs to be clarified based on several factors. Depending on the facts, it may be the prosecutor, the defendant, or both. In some cases, it can also be the attorney representing the defendant. Several issues will arise when dealing with this issue, such as the presence of exculpatory evidence and the presumption of innocence.

Presumption of innocence

The presumption of innocence is a legal principle that protects the rights of individuals. It is an essential aspect of our justice system. It is a fundamental human right under the UN Universal Declaration of Human Rights.

In criminal cases, the defendant is presumed innocent until they have been proven guilty beyond a reasonable doubt. This right has been enshrined in laws and statutes in various countries, including the U.S. However, the Constitution of the United States does not include the word “presumption” in its language.

The presumption of innocence is based on the ideals of justice and liberty. Although it does not guarantee the freedom of an accused person until they have been found guilty, it does shield the defendant from general intrusions on their privacy.

Exculpatory evidence

Exculpatory evidence is critical in criminal cases. It can be helpful in many ways, including increasing the chance of acquittal. Whether or not the evidence is favorable to the defendant depends on the circumstances.

For example, a witness’s statement can cast doubt on the truth of the accusation. If the witness’s testimony is favorable, the defense can use it to introduce evidence demonstrating the innocence of the accused. This can include facts about the victim’s violent past.

Similarly, a defense witness’s testimony about the accuser’s character can be admissible. Although not generally considered as favorable as evidence to negate guilt, this is an excellent example of evidence that can be admitted under Rule 608(a).

In addition to providing a basis for forming an opinion, such evidence is sometimes called the Brady material. The United States Supreme Court has held that a defendant must have exculpatory evidence presented in his trial.

Justification defenses

Justification defenses are a means of exonerating a defendant from criminal responsibility. While they do not prevent an accused from being prosecuted, they make it easier for a jury to understand why someone did something. They also offer the court a chance to consider a lesser charge or a lighter sentence.

There are many types of justifications. Among the most important are duress and necessity. Both of these require the defendant to use force. The duress defense is similar to the necessity defense but distinguishes between manufactured and natural parties.

Another common type of justification is self-defense. This type of defense allows the defendant to escape punishment for a crime if it was committed to protecting another person.


Entrapment in defense of the accused occurs when a government official persuades a normally law-abiding person to commit a crime. The government may use various techniques to achieve its objectives, such as fraud, harassment, or threats.

There are two main types of entrapment in defense of the accused. One is the objective test, and the other is subjective. Generally, an entrapment defense is successful if the defendant can prove that a police officer induced them to commit a crime.

The objective standard is the better of the two, as it focuses more on the action of law enforcement rather than on the illustrative nature of the particular instance. This is because the preponderance of evidence standard requires the defendant to present enough proof to demonstrate that a government official induced them to commit a specific crime.


An insanity defense is a legal defense in which the defendant cannot understand what they did or what the law is. In this case, the person is not guilty of the crime. However, an insanity defense is difficult to prove and only works on a small number of issues.

Jurisdictions use four tests to determine insanity. One is the “Irresistible Impulse” test, which measures insanity due to uncontrollable compulsion.

Another type is the “Durham Rule,” which requires the defendant to do what they are accused of doing. This is often applied as a mitigation factor.

The third test is the “M’Naghten Rule,” which most jurisdictions employ. American courts have embraced this test for over a century.