Common Legal Defenses In Colorado Criminal Cases*
Introduction – While it is not only required but necessary for a Colorado criminal defense lawyer to take complete control over the strategic and tactics in the defense of a criminal case – it is equally necessary – for the client – the Defendant in the case – to have a plenary and complete understanding of at least the fundamental issues in the defense case. To that end – what follows are descriptions of some basic criminal defenses.
An alibi is a defense to a crime by demonstration that the defendant was not in the place where an alleged offense took place. Unlike many other defenses that are meant to justify criminal activity, an alibi defense is evidentiary in nature and meant to show that the defendant is actually innocent because he could not have possibly committed the alleged actions.
Alibi defenses are often given or substantiated by the testimony of a witness who is not the defendant. The alibi witness will claim that the defendant was with him at the time of the alleged offense at a location other than the scene of the crime. By taking the stand, the alibi witness will open himself to questions regarding his motivation to lie on behalf of the defendant and his reliability or character may be called into question.
The defense lawyer can argue that the defendant should not be held liable because the victim gave him/ her permission to commit the crime.
Corpus delecti has often been interpreted as requiring additional evidence beyond a confession before an individual can be convicted of a crime. In other jurisdictions corroborating evidence must be introduced before a confession may be admitted at trial. Additional evidence may also be required before an accomplice’s confession may be admitted against the defendant.
Corpus Delecti does not typically require proof of each and every element of a crime before an out-of-court confession becomes admissible. However, it does require independent evidence showing that the charged crime occured.The principle of corpus delecti requires corroborative evidence that proves (1) the occurrence of the specific kind of injury or loss and that (2) the injury or loss was caused by someone’s criminal activity. Some jurisidictions may require some independent proof that the defendant was connected to the criminal act.
Some courts have recognized that a defendant’s responsibility for a criminal act may be diminished because of cultural differences. This so called “Cultural Defense” is usually argued when the defendant is in a minority group that holds normative values that conflict with society at large. This, controversial, defense is generally raised in countries with immigrant populations.
The cultural defense is typically presented in one of two ways. First, it may be used to demonstrate that the defendant failed to have the requisite mental state required for the crime or that a mental state existed which would mitigate the crime. For instance, the cultural defense may be applied as partial defense to homicide by demonstrating that an act of provocation reduces the crime from murder to manslaughter.
The cultural defense may also be presented by arguing that, because of cultural differences, the defendant made a mistake of law, was mentally incapable of commiting the crime, or believed the act was required in self-defense.
Even where the cultural defense is inadmissible as an affirmative defense to a crime, it may be argued as a mitigating factor at sentencing.
Double jeopardy is a procedural defense that prevents a defendant from being tried multiple times on the same or similar charge, following a legitimate acquittal or conviction. The concept of double jeopardy is a longstanding norm in Western legal thought, having roots in both Greek and Roman Law. As a result, the tradition of double jeopardy is present in a great number of modern legal regimes in one form or another. Many countries have codified protections against double jeopardy as a constitutional right, including Canada, India, Israel, Mexico and the United States.
In the common law, a defendant may enter a preemptory plea of double jeopardy, indicating to the court that the defendant had previously been acquitted or convicted of the same offense. Once the issue is raised, evidence will be presented in order to rule as a preliminary matter whether the plea is substantiated and, if it is, the projected trial will not proceed.
Generally, protections against double jeopardy prevent a person from being convicted twice for the same crime based on the same conduct. If a person robs a bank, he cannot be convicted of robbery twice for the same actions. Similarly, a defendant cannot be twice convicted on two different crimes arising from the same conduct unless they are significantly different or designed to prohibit different forms of conduct. For instance, a person may not be convicted of both murder and manslaughter for the same killing, but he can be convicted of both murder and robbery if the murder arose out of said robbery. Double jeopardy is related to the theory of collateral Estoppel, which prevents the same parties from relitigating facts that have already been established by a final judgment.
However, double jeopardy does not generally prohibit the government from bringing a civil action against a defendant for the same offense, even after the defendant is acquitted of the crime. Additionally, acquittal in one jurisdiction does not necessarily bar trial in another for the same offense.
Duress or coercion is a defense to all crimes except murder. To successfully establish the defense of coercion, the defendant must present evidence that he performed the criminal action under the threat of imminent infliction of death or great bodily harm to him or a third person. The defendant must present evidence that he reasonably believed the threat of death or great bodily harm would be used if he did not perform the criminal action.
Coercion is very similar to the defense of necessity. It differs in that necessity involves pressure from physical or natural forces, rather than human actions. The classic example of coercion is “putting a gun to someone’s head” to compel action. If there is evidence that the defendant committed the act in question only because he was threatened with physical harm, you should explore a coercion defense
In criminal law, entrapment consists of a government agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. In many jurisdictions, entrapment serves as a possible defense to criminal liability. The rationale underlying the entrapment defense is that it serves as a deterrent to government agents from targeting innocent civilians by using reprehensible policing tactics, which induce those persons to engage in criminal activity.
No entrapment defense is possible, however, when a person is ready and willing to break the law, and the law enforcement officer merely provides what appears to be a favorable opportunity to do so. For an entrapment defense to succeed, the evidence must leave a reasonable doubt whether the person had any intent to commit the crime but for the inducement or persuasion of the government agent. As a result, entrapment defenses are difficult to mount for defendants with prior related convictions.
Two distinct tests exist in the U.S. courts for determining whether entrapment has taken place: the subjective test and the objective test. Under the subjective test, the court looks at the defendant’s state of mind, and entrapment can only be claimed if it is determined that the defendant had no “predisposition” to commit the crime. The objective test, by comparison, looks instead at the government agent’s conduct, and entrapment occurs only when the government agent caused an objectively law-abiding person to commit a crime.
Under either test, the entrapment defense is a difficult one to prove and does not generally succeed. Additionally, employing an entrapment defense is risky because the jury will hear about the defendant’s past criminal behavior, if any, which might prejudice the jury. Entrapment is not a constitutionally required defense and states are therefore not bound to provide for it as a defense in their criminal codes
Failure of Proof
A criminal case involves shifting obligations between the prosecution and the defendant. In systems where the defendant is given the presumption of innocence, the prosecution has the burden of proof in demonstrating the crime was committed by the defendant.
Burdens are allocated in shift risk of error from one party to the other.
Types of Burdens
A criminal defense attorney should keep in mind that there are generally two kinds of burdens in a criminal trial: burdens of production and burdens of proof or persuasion.
The burden of proof or persuasion is the burden of convincing a fact finder that a given factual claim is true or false to a given degree of probability.
In contrast, the burden of production, requires the prosecution or defense lawyer to produce some quantum of evidence in order to raise an issue before the fact finder.
Various Standards of Proof
A scintilla is the smallest amount of evidence possible. Rarely used in criminal law, scintilla is the standard used in some courts for denying the plaintiff a restraining order.
Reasonable suspicion is the standard required before a police officer may stop and question or frisk an individual against their will. In Terry v. Ohio the court stated that reasonable suspicion meant that the police officer:
…observed unusual conduct which lead him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing with may be armed and dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries and nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled (for the protection of himself and others in the area) to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be useful to assault him”
In the United States, probable cause is the standard required to effect a constitutional arrest or issue a valid search warrant.
Probable cause is an objective legal standard that balances effective law enforcement against an individual’s freedom from unwarranted invasion into their privacy. Whether or not probable cause exists or not will depend all the facts.
Traditionally probable cause has been determined by a “totality of the circumstances” test. In Illinois v. Gates, a case involving probable cause based on an informant the court phrased the magistrate’s task this way:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate has a “substantial basis for … conclud[ing] that probable cause existed.
Preponderance of the Evidence
Preponderance of the evidence, the standard used in civil cases in the United States and in criminal cases in some countries, is the standard of proof that requires the bearer show that the evidence shows a fact is more likely than not to have occurred. The standard is satisfied by a showing that the likelihood of occurrence is more than 50 percent.
Clear and Convincing Evidence
Clear and convincing evidence is a standard employed in both criminal and civil courts. It is higher than the preponderance standard and yet falls short of proof beyond a reasonable doubt. Clear and convincing evidence is the standard used by the United States Supreme Court in Calderon v. Thompson, where they concluded that a defendant who has been convicted but alleges factual innocence in a habeas motion must demonstrate by clear and convincing evidence that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence”. Other courts have concluded that the standard requires the proof that a fact is substantially more likely than not to be true.
Proof Beyond a Reasonable Doubt
Proof Beyond a Reasonable Doubt is the standard required in the United States for conviction of a criminal charge. The standard is generally not quantifiable as a percentage probability. The exact formulation of reasonable doubt has never been determined.
Chief Justice Shaw of the Massachusetts Supreme Judicial Court made this observation about the reasonable doubt standard in 1850:
“[W]hat is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.
The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt.”
In the U.S. Supreme Court case of Victor v. Nebraska the court held a similar jury instruction on reasonable doubt unconstitutional:
” `[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.’ “
The court held that the portions of the instruction in bold rendered it unconstitutional. The court has never fully approved an instruction.
Intoxication is a mental state in which a person’s normal capacity to act or reason is inhibited by alcohol or drugs. Intoxication is not in and of itself a defense to a crime, but it may be raised to negate the mens rea element of criminal activity and in that sense excuse criminal liability.
Lack of jurisdiction
For a criminal case, proper jurisdiction is defined by the location of criminal activity and the subject matter of the criminal activity that occurred. In order for a court to be able to prosecute an individual for any charged crime, the prosecuting court must have proper personal and subject matter jurisdiction over the individual. Should either of these elements be lacking, the accused may be able to argue that the court has no power to proceed with the prosecution and that the proceedings be abandoned. Jurisdictional rules and the procedure for arguing a lack of jurisdiction over the accused are specific to each court and the procedure for ending prosecution on a lack of criminal jurisdiction argument will vary by court and sovereign.
Mental Incapacity, including Insanity Defense
The defense of insanity is an affirmative defense that exculpates the defendant from any criminal liability because, at the time of the crime, the person did not appreciate the nature, quality, or wrongfulness of his actions. A defendant who claims defense by reason of insanity normally must undergo a psychological examination before putting forth the defense. Use of the insanity defense tends to be rare and sustaining the defense at trial is very difficult. Putting forth an insanity defense might be said to be equivalent to pleading ‘not guilty by reason of insanity’ which, if successful, will result in the defendant being committed to a psychiatric institution instead of prison for an indeterminate period. Many jurisdictions allow for a defense by diminished capacity, which serves as a mitigating factor to reduce charges or sentences.
Allowing an insanity defense is based on the theory that conviction and punishment are justified only if the defendant deserves them, and it would be unfair to punish someone who is so mentally disturbed that he lacks responsibility as a moral agent. The legal definition of insanity is very different from the psychiatric definitions of mental illness and should not be used interchangeably.
The insanity defense has historical roots in common law dating back to 13th Century England when “complete madness” was established as a defense to criminal charges. The test evolved over time and by the 18th Century had evolved into the “wild beast” test, wherein a person deprived of his understanding and memory so as not to be any more aware of his actions than a wild beast could be excused from criminal liability for his conduct.
Diminished Capacity Defense
Diminished capacity is an affirmative defense meaning that although the accused was not insane, due to emotional distress, physical conditions, or other psychological factors, he could not fully comprehend the nature of the criminal act he was committing. Unlike the Insanity Defense, a diminished capacity defense does not exculpate the accused of all criminal liability. Instead, the defense serves to remove the element of premeditation or criminal intent from the defendant’s actions, thus warranting conviction of a lesser crime, such as manslaughter instead of murder. The rationale for diminished capacity defenses is that while a mentally abnormal defendant might not meet the test for legal insanity, he may nonetheless suffer from a serious rationality impairment that compromises his judgment and responsibility for his actions. Typically, courts are reluctant to create too broad a diminished capacity defense for fear that too many dangerous defendants would go free earlier than concerns of public safety require.
Mistake of Fact
Unlike a Mistake of Law defense, a mistake of fact defense can sometimes exculpate a defendant from criminal liability for his criminal actions where the defense can show that the mistake of fact negated the requisite mens rea of the crime. If mens rea is not an element of the crime, such as in strict liability crimes, the mistake of fact defense is not available.
For specific intent offenses, a defendant can avoid criminal liability if his mistake of fact negates the specific intent element of the crime, specifically if he lacks the intent designated by statute. The burden of proof is on the defense to submit sufficient evidence to show that the mistake of fact negated the requisite mens rea of the offense. For general intent crimes, which require only the intent to act in a certain way regardless of criminal intent, the general rule is that a mistake of fact must be reasonable to excuse criminal liability. Under the legal-wrong doctrine, however, the mistake of fact defense will not work if the defendant’s conduct would still be illegal even if the facts were as the defendant thought them to be. Similar, but less widely accepted, is the moral-wrong doctrine, which disallows a mistake of fact defense if the defendant’s conduct was morally wrong even if the facts were as the defendant thought them to be.
Strict liability crimes, such as bans on toxic dumping or the sale of alcohol to minors, lack a mens rea element. Thus, a mistake of fact defense cannot be asserted to avoid criminal liability for violation of a strict liability crime.
The Model Penal Code § 2.04(1) provides that a mistake is a defense if it negates the mental state required to establish any element of the offense. However, the mistake of fact defense is not available to a defendant who is still guilty of another offense had the circumstances been as he supposed.
Mistake of Law
Generally, a mistaken belief about the law will not serve as an exculpatory defense to criminal actions. All persons are presumed to know and understand the law, except for minors or those of diminished mental capacity. Therefore a mistake of law defense is only allowed in rare circumstances.
A mistake of law may help a criminal defendant in specific intent cases through a showing that the defendant had no intention to commit the criminal action element of the charge. As an example, assume a defendant is accused of robbing another person. The defendant was of the belief that the victim owed him money and that he was merely engaging in self-help to retrieve the money he felt he was rightfully owed. The defendant therefore does not have the specific intent to “gain control over the property of another,” a requisite element of many robbery statutes.
If the law does not allow for self-help but the defendant mistakenly believed that it did, then the court might find that the defendant’s mistake of law negated the specific intent element of the robbery charge. In practice, the defendant’s counsel must show first that the accused can be found guilty of the alleged crime only if he deliberately broke the law (establishing specific intent requirement), and second, that the mistake or ignorance of the law at the time of the offense negated that specific intent element.
A mistake of law defense may also stand upon the defendant’s reasonable reliance on an official or government statement, such as an administrative order or interpretation by a public officer or government agency of a judicial or legislative decree. Mistaken advice from an attorney however does not create a mistake of law defense.
Necessity is a justification to crimes. Necessity is similar to the duress defense but duress involves a threat from humans. To establish necessity, a defendant presents evidence that he committed a crime because of pressure from natural forces. The defendant must establish that he believed that the conduct was necessary to avoid harm to society that would be greater than the harm caused by his criminal conduct. The physical pressures render the defendant’s otherwise criminal conduct justifiable.
There are two exceptions. The defense is not available to a defendant who is responsible for creating the situation that required him to choose between the two evils. Additionally, causing the death of a person to protect property is never justified.
An example might help explain the circumstances under which the defense is appropriate. During a violent storm on a ship, a passenger determines it is necessary to throw some cargo overboard to save the lives of the people on the ship. Such actions would not constitute criminal damage to property. However, under no circumstances could someone throw passengers overboard in order to save cargo
In this type of defense, the lawyer argues that it was physically impossible for the defendant to have committed the crime.
Self-Defense, including Defense of others and Defense of Property
The right of self-defense is the right of a civilian to justifiably engage in violent actions for the sake of defending one’s self, one’s property or the lives of others. Self-defense can be asserted as an affirmative defense to criminal charges for an act of violence, providing justification for the violent actions and absolving the accused of any criminal liability. In essence, acting out of self-defense can negate the requisite mens rea required to assert criminal liability in many circumstances.
The United States generally recognizes the affirmative defense of “self-defense” to avoid criminal liability for certain violent acts. However, self-defense is not a right guaranteed by the Constitution or federal government, and each state is free to define the contours of the legal doctrine through legislation and common law.
Defense of Self
The privilege of self-defense is based upon a person’s reasonable beliefs as opposed to objective reality. A person is thus justified in using force to protect himself if he subjectively believes that such force is necessary to repel an ‘imminent, unlawful attack,’ even if objectively that belief might be false. Increasingly, courts have applied a “reasonable person in the defendant’s situation” standard as opposed to the “reasonable person” standard, and will look to factors like defendant’s knowledge about his assailant, prior experiences between the parties, the physical attributes of the parties involved and physical actions undertaken by the assailant.
If a reasonable person would not ever have felt threatened, then self-defense is not justified. If a thief attempts to steal a person’s wallet but then runs off without making any perceived threat of physical harm, the defendant would not be justified in any violent acts of self-defense against the aggressor. Importantly the reasonableness of perceived danger can change throughout the course of the interaction with an aggressor. Once an assailant has been subdued, for instance, it will no longer be justified for the defendant to commit a violent act against him in self-defense. Any perceived danger should have ceased and any reasonable person in those circumstances would no longer feel threatened. This extends to “revenge” type acts as well – if a rape victim subsequently tracks down the rapist and shoots him, the elapsed time between the actions would obviate any justification by self-defense.
Courts recognize divergent justifications for deadly force versus non-deadly force when acting in self-defense. At common law, the level of force allowed in response to an attack depends on the defendant’s reasonable belief of the type of attack he faces – only when the defendant reasonably believes he faces an imminent and unlawful deadly assault is deadly force allowable. Otherwise, he must resort to non-deadly force to repel the imminent and unlawful attack. The Model Penal Code § 3.04(2) attempts to remove some of the uncertainty of the “reasonable person” test by defining four situations in which deadly force is justified – as a response to protect oneself from death, serious bodily injury, forcible rape or kidnapping.
Jurisdictions are sharply split on the so-called “retreat rule,” which provides that if a defendant is able to safely retreat from an aggressor and therefore avoid using deadly force, the defendant must do so and any use of deadly force will not be justified. The Model Penal Code similarly requires a defendant to retreat if he can safely do so to avoid using deadly force. However, both common law and the Model Penal Code allow for the “Castle Rule” exception to the retreat doctrine – when in one’s home (his or her “castle”), one need not retreat from an aggressor before resorting to the use of deadly force. “Castle Rule” and retreat laws different from state to state.
While at common law a defendant’s failure to prove all required elements of self-defense made the defense wholly unavailable, some states and the Model Penal Code now recognize an “imperfect” self-defense claim, which can support a defendant’s conviction of a lesser charge such as involuntary manslaughter as opposed to murder as a result of his violent actions. Some states similarly apply a common law principle to reduce charges against a person acting in self-defense that injures an innocent bystander under a transferred-justification doctrine. The Model Penal Code however rejects this transferred-justification doctrine.
Another extension of the self-defense doctrine is the “Battered Woman Syndrome” defense. Many courts accept that when a battered woman who routinely is subjected to abuse at the hands of her spouse or partner responds with deadly force when facing an imminent attack, the self-defense is justified. Courts however are split on allowing for a battered woman to kill her abuser during a lull in violence and not in response to any imminent attack. Some jurisdictions consider the pattern of abuse so traumatic that any violent act of self-defense is justified even without an immediate threat of force by the aggressor. No courts however allow for a battered woman to hire a third party to murder her abuser.
An initial aggressor may be able to assert a justification of self-defense in one of two circumstances: withdrawal and sudden escalation. If an initial aggressor makes a good faith effort to remove himself from the fight, and communicates to the other person his desire to do so, then the initial aggressor may act in self-defense if the other participant refuses to withdraw as well. Similarly, the initial aggressor may act in self-defense if in the initial victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw.
Defense of Others
In U.S. law, the same rules for self-defense extend to the use of force to protect another person from danger. The Model Penal Code provides that the use of force to protect another is justifiable when (a) the actor would be justified in using such force to protect himself against the injury he believes threatened upon the person he seeks to protect, (b) the person he seeks to protect would reasonably be justified in using such protective force, and (c) the actor believes his intervention is necessary to protect the other person. The rules of retreat similarly extend to the actor seeking to protect a third person.
Defense of others adds the element of reasonable belief of another’s mental state into the justification inquiry. A defendant asserting a defense of others claim must not only show that his apprehension of imminent harm was reasonable but also that the person he sought to protect was, reasonably, in apprehension of imminent harm as well. While the same “reasonable person” standard would apply to both inquiries, this additional element of proof complicates the defense of others inquiry. Most courts however will not allow for a defense of others justification in the course of an illegal fight or illegal activity.
Defense of Property
U.S. law also extends the right of self-defense to the use of force to protect property from danger under limited circumstances, including (a) preventing or terminating unlawful entry, trespass or carrying away of tangible property and (b) to re-enter land or retake tangible property that the actor believe rightfully belongs to him when the force is used immediately after dispossession. The Model Penal Code limits the justifiable use of force however. The person acting in defense of property must make a request for the transgressor to desist under reasonable circumstances, cannot exclude a trespasser if the exclusion exposes him to substantial danger or bodily harm and cannot use any device designed to cause death or serious bodily harm in the process of protecting the property. Deadly force is only allowed in the defense of property if the actor believes that the person against whom the force is used is trying to take their dwelling without a claim of right or the person against whom force is used has employed or threatened deadly force against the actor in the course of attempting to commit arson, burglary, robbery or other felonious theft and destruction of the property.
Statutes of Limitation
A statute of limitations is a time limit that sets forth the maximum period of time after an event that legal proceedings based on that event may be initiated. In common law systems, the statute of limitations is pronounced by legislation and will normally vary according to the type of crime in question. In civil law systems, similar provisions are normally embodied in the civil or criminal code and are called Periods of prescription or Prescriptive periods.
The statute of limitations is meant to serve the interests of social justice, allowing for lesser crimes from long ago to be passed over so limited judicial resources can focus on contemporary crimes. Additionally, statutory time limits on prosecution are designed to prevent fraudulent or stale claims from arising after evidence has been lost or facts have become obscure. More serious crimes tend to have a longer statute of limitations, allowing for prosecution well after the commission of the criminal act and reflecting the notion that certain actions should not go unpunished, no matter how long they take to come to light.
In a common law system, the statute of limitations is a defense that must be raised by the defendant. If the statutory period is shown to have lapsed, then the defense will succeed and the prosecution will cease. In civil law systems, the impetus is placed upon the prosecutor to commence a criminal action within the period of prescription. Failure to do so will result in an inability to prosecute.
* This article was adapted, edtied and summarized – credit is given to – www.defensewiki.com