Gavin Howe
A legal defense is a strategy used by a defendant to avoid civil liability or criminal conviction. In common law, a defendant may use a variety of defenses to limit or avoid liability, including self-defense, defense of others, defense of property, insanity, intoxication, consent, abandonment, entrapment, and more. The defendant typically holds the burden of proof for their defense and may attempt to poke holes in the prosecutor's case, argue that another individual committed the crime, or claim that they are not mentally capable of understanding the consequences of their actions. The defense phase of a trial occurs after the prosecution phase, and includes opening and closing arguments, as well as cross-examination.
| Characteristics | Values |
|---|---|
| Purpose | To avert civil liability or criminal conviction |
| Timing | After the prosecution phase |
| Burden of proof | On the defendant |
| Types | Self-defence, defence of others, defence of property, insanity, intoxication, consent, abandonment, entrapment, diplomatic immunity, statute of limitations, statute of frauds, etc. |
| Strategy | Dismantling the charges, poking holes in the prosecution's case, attacking evidence, challenging witness credibility, etc. |
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What You'll Learn
Insanity
The defence of insanity takes different forms in different jurisdictions, with variations in availability, definition, and burden of proof, as well as the role of judges, juries, and medical experts. In some jurisdictions, the decision about the sanity of the accused is determined by a jury.
The insanity defence has a long history, dating back to English common law, where Edward II declared that a person was insane if their mental capacity was equivalent to that of a "wild beast". The first complete transcript of an insanity trial dates back to 1724. Over time, the insanity defence evolved, with the M'Naghten Rules of 1843 being a significant development. These rules, formulated by a panel of judges, defined the defence as:
> "at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or [...] that what he was doing was wrong."
The key to the M'Naghten Rules is that the defendant could not comprehend the nature of their actions during the commission of the crime. This rule was widely adopted by American courts and legislatures for over a century, until the mid-20th century.
In the United States, the insanity defence has undergone changes, with many states shifting the burden of proof from the prosecutor to the defence after the John W. Hinckley case in 1982. Some states have eliminated the defence entirely, opting instead for a "guilty but insane" verdict, leading to psychiatric institutionalisation instead of imprisonment.
The insanity defence is a complex and evolving area of law, with various tests and standards applied to determine whether a defendant is legally insane.
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Self-defence
In the United States, self-defence is an affirmative defence, used to justify the use of force by one person against another under specific circumstances. The general rule is that a person is privileged to use such force as is reasonably necessary to defend themselves against an apparent threat of unlawful and immediate violence from another. The use of force must be proportionate to the danger, and the person defending themselves cannot be the initial aggressor.
In some jurisdictions, there is an imperfect self-defence rule, where an individual who mistakenly believes they were justified in using deadly force in self-defence, but is not legally justified, may have a murder conviction reduced to manslaughter. The majority of U.S. jurisdictions have rejected the common law 'Duty to Retreat' doctrine, which requires individuals to retreat from a threatening situation if it is safe to do so, in favour of 'Stand Your Ground' laws, which allow individuals to use force, including deadly force, without the obligation to retreat.
In criminal law, self-defence is not an absolute right and must be proven with clear evidence. The defendant must demonstrate that they genuinely perceived an immediate threat and that their response was both necessary and proportionate to the threat.
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Consent
In a criminal case, a defendant may raise a defense to avert criminal conviction. This is done by the defendant in an attempt to avoid what would otherwise result in liability. In common law, a defendant may raise any of the numerous defenses to limit or avoid liability.
In the case of adults, there are limits imposed on their capacity to consent where the state deems the issue to be of sufficient significance. For instance, many states have statutory rape laws that make it illegal to have sexual intercourse with a minor, regardless of consent.
In addition to showing that consent occurred, a criminal defendant will also have to prove that the person who gave consent was legally able to do so. Consent may be found to be invalid if the person is too young to give consent, is intoxicated, or is mentally incompetent.
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Constitutional violation
A defendant may raise a defence in an attempt to avert civil liability or criminal conviction. In common law, a defendant may raise any of several defences to limit or avoid liability. These include lack of personal or subject matter jurisdiction of the court, failure to state a cause of action, affirmative defences, defences conferred by statute, and ex turpi causa non oritur actio.
One of the most effective defence strategies is the use of constitutional violations. The U.S. Constitution guarantees certain protections, and a violation of a person's constitutional rights can have a significant impact on a criminal case. For example, the Fourth Amendment protects against unreasonable search and seizure, and any evidence obtained as a result of an illegal search may be deemed inadmissible in court. This can lead to a prosecutor dropping charges or reducing the criminal charge.
The Fifth Amendment is the right a person has against self-incrimination and forms the basis for Miranda warnings. When police arrest someone, they must inform them of their Miranda rights, including the right to remain silent, the right to have a lawyer present, and the right to have a lawyer provided for them if they cannot afford one. The Fifth Amendment also includes the principle of double jeopardy, which states that individuals cannot be tried twice for the same crime.
In addition to the Fourth and Fifth Amendments, other constitutional provisions may be relevant to a defence strategy, depending on the specific circumstances of the case. It is important to seek legal advice to understand the options available and navigate the complexities of the case.
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Innocence
The burden of proof falls on the prosecution, which must present compelling evidence to prove the defendant's guilt beyond a reasonable doubt. If the prosecution fails to do so, the defendant is acquitted. This presumption of innocence is a crucial safeguard for the rights of the accused and ensures that the onus of proof rests with the accuser or claimant.
In the context of common law defenses, innocence plays a pivotal role. A defendant may assert their innocence by presenting evidence that contradicts the allegations made against them. This can involve challenging the accuracy of the allegations, raising doubts about the credibility of witnesses, or presenting new information that exonerates them.
Additionally, the defense of innocence can be linked to other common law defenses. For example, a defendant may argue that they had a legal and reasonable defense for their actions, such as self-defense, defense of others, or defense of property. They may also assert that they lacked the mental capacity to understand the consequences of their actions, which could lead to a finding of not guilty by reason of insanity.
In summary, the presumption of innocence is a foundational aspect of criminal justice systems, and it empowers defendants to actively assert their innocence by utilizing various common law defenses to avoid criminal liability.
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Frequently asked questions
A common-law defense is a legal argument raised by a defendant to avoid criminal conviction or civil liability.
Examples of common-law defenses include self-defense, defense of others, defense of property, abandonment, entrapment, consent, insanity, intoxication, mistake, and alibi.
The goal of a common-law defense is to create reasonable doubt by pokeing holes in the prosecution's case, arguing that another individual committed the crime, or presenting a legal and reasonable defense for the defendant's actions.
A common-law defense negates specific elements of the criminal offense, while an affirmative defense offers a broader defense to the criminal charges without denying guilt. Affirmative defenses include insanity, self-defense, justification, duress, and entrapment.
