Defenses in Criminal Law 2023 (guide + examples)

Here I will share with you major defenses in criminal law.

Criminal defense is a deliberate strategy used to attempt to discredit the prosecution’s evidence as being reliable and sufficient.

With vivid examples, you will see how defenses in criminal law are applicable in criminal cases.

Major Defenses in Criminal Law

Generally, the major defenses in criminal law include intoxication, insanity, mistake of fact, double jeopardy, the bonafide claim of right, alibi, and self-defense.

Further defenses in criminal law may be categorized into two forms, there are partial defenses and full defenses.

Partial defenses are defenses that do not exonerate you from liability but may help by reducing punishment or by being convicted with a lesser offense while full defenses are the opposite of partial defenses; they are absolutely exonerating you from criminal liability.

Further Defenses in Criminal Law can be standard or affirmative.

With a standard defense, you totally deny the crime and criminal liability

When using an affirmative defense, you concede to the court that you committed the alleged crime and then provide justification for your actions based on the situation.

Most of the affirmative defenses in criminal law are partial defenses

Do you want to learn how to defend yourself and win any criminal case? read here

Major defenses in criminal law, criminal law defenses

Bonafide Claim of Right

This is the full defense. It applies only to offenses relating to properties example theft, malicious damage to property, etc. it simply entails that you dispose of the property of another person in utmost good faith, honestly and without fraud, in respect, of that property.

Example

You were employed as a house servant by another person. Once you are accused of theft You may defend yourself by admitting that you took clothes from that person’s room by opening the window and “pole fishing” because that a person had dismissed you from your employment owing you three months’ wages and that person had failed to pay the wages due to you despite repeated requests, you decided to take his clothes.

To successfully use the bonafide claim of right defense, you must prove to the court that the claims of right were bonafide and the claim was with the honest belief that you are entitled in law to do what you did.

mistake of Fact

This defense may be full or partial depending on the circumstance of your case. It applies to all mistakes of facts but not the law.

For example, if you were caught hunting in a restricted area where hunting is illegal and you say that you were not aware that you crossed the boundary from the non – restricted area here you’re pleading a mistake of facts. Therefore you may be excused.

To successfully use this defense you must prove to the court that the mistake was honest, reasonable, and mistaken belief.

 Insanity

This defense has a lot of complications because it is an assumption of the law that every person is sane (sound mind) and possesses a sufficient degree of reason to be responsible for his crime until proved otherwise to the approval of the court.

To succeed in this defense you must clearly prove that at the time you committed a crime you suffered a disease of the mind which made you incapable of understanding what you were doing (M’naughten Rule)  as this requires proof from a professional doctor.

This defense operates only as a partial defense. Because once successfully raised it doesn’t lead to the release of the accused instead, the accused is detained as a criminal lunatic.

Intoxication

Intoxication simply means being influenced by drugs or alcohol.

This defense might not serve you if you are a habitual drinker or drug user.

Because to succeed with intoxication defense you must prove to the court that at the time you commit a crime you didn’t know what you did due to the intoxication.

Further, you must prove that your state of intoxication was caused by the carelessness or the bad motive of another person.

The intoxication defense applies in very limited circumstances and typically depends on whether the intoxication was voluntary or involuntary and what level of intent is required by the criminal charge.

This defense is partial.

Compulsion/Coercion

Compulsion is the act of forcing someone to do what he is not willing to do by using force on him or threatening to use force on him.

For example when robberies enter your home and force you to kill your spouse, To succeed with this defense you must prove that

  1. The threat was instant, immediately, and continued throughout the time of the commission of a crime.
  2. Threats of future injury will not excuse any offense.
  3. The threats were directed at you.

A married woman has a defense of compulsion by her husband if the offense charged is an offense other than murder or treason. Committed to the presence of her husband and is committed to his coercion.

Self-Defense/Defense of a Person

This might be the defense you may like most.

Self-defense allows you to use any reasonable force to defend yourself depending on the nature of the assault or to prevent the commission of a violent offense to another person.

The test which applies in this defense is a ‘reasonable force test’. That means you must use reasonable force once defending yourself.

For example use of a knife to defend yourself from a person who has a knife to harm you is a reasonable force but once you use firearms (pistol) it may be an unreasonable force.

You can use this defense only where there is a possibility of death or grievous harm.

learn more about self-defense here

Other defenses in criminal law

Consent

Consent is a powerful affirmative defense because it shows that the person who was the alleged victim of the crime voluntarily agreed to the defendant’s actions.

Many crimes, theft being perhaps the most obvious example, cannot constitute crimes if the victim gave agreement to the defendant’s activities against them (for example, giving the thief the keys to the car).

With this defense, the law categorizes consent into two folds i.e “direct consent” and “apparent/implied consent.” 

When someone expressly states that they agree to either take part in the illegal activity themselves or let the defendant to do so, this is known as direct consent. Direct consent must be expressed verbally or in writing to be considered valid.

In the absence of any verbal or written expressions, apparent consent—also known as implicit consent—is the presumption that someone has consented to something.

For obvious reasons, it is significantly more difficult to demonstrate apparent consent than direct consent.

Entrapment

If police abuse their authority and coerce you into committing a crime, the entrapment defense may be viable if you can prove that, under normal circumstances, you would never have done so.

Under  Texas Penal Code Section 8.06, entrapment requires the defendant to prove four specific elements:

  1. engagement in certain criminal behavior
  2. inducement to engage in criminal behavior by a law enforcement officer;
  3. who used persuasion
  4. which persuasion was effective enough to be the cause of the defendant committing the crime

Abandonment or withdrawal

This defense can be used when a person had plans to commit a crime or take part in one, but changed their minds and decided not to.

For the majority of crimes, a defendant can prove that they successfully abandoned or withdrew from a crime by demonstrating that they stopped taking part in it before it was actually committed, that any actions they took before abandoning the crime did not help it be successfully completed, or that they alerted the police of the planned crime as soon as possible.

Isack Kimaro
Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) and Post Graduate Diploma in Legal Practice. Lawyer by profession and blogger by passion