Defense Techniques for Criminal Law Cases

Criminal Law Attorney

A criminal trial involves the government, whether local, state, or federal, bringing a case against a suspect who violated a law, where penalties may include fines and/or jail. The prosecutor, who represents the government, must prove the defendant guilty beyond a reasonable doubt. A criminal case is different from a civil case, which typically occurs between two people, and is often referred to as suing someone.

When a trial occurs, the prosecutor will argue the case in order to obtain a guilty verdict, and the defense will proffer its version of events and evidence. A public defender or private defense attorney may employ different procedures and strategies to either obtain a not guilty verdict or plead guilty to a lesser charge.

Before the Trial

An attorney will likely employ a few standard techniques before a trial begins, which will include:

  • Reviewing the details of the arrest
  • Reviewing paperwork filed by the police
  • Reviewing evidence before the trial

Examining the details of the arrest and subsequent paperwork may yield advantageous results. For example, when an officer administers a breathalyzer test for a suspected DUI, the officer who administers the test must have a valid license to operate the machine. A defense attorney who scrutinizes the police paperwork may find that the administering officer did not have a valid license at the time of administration, thereby making the results of the test inadmissible in court. If this discovery does not outright dismiss the case, it can reduce penalties.

A defense attorney has the right to know what evidence will be used by the prosecution before it is introduced in court. It is possible that evidence against a defendant, which the prosecution’s case could be dependent upon, is inadmissible. If a police officer failed to inform a suspect of his or her Miranda rights prior to or during the arrest, a suspect’s confession might be inadmissible. It may be true that a defendant robbed a convenience store of all the money in its register, but if the police coerced the suspect into a confession without reviewing the defendant’s rights, that confession might not be usable as evidence.

Defense Strategies

Depending on the particular circumstances surrounding a case, a defense attorney may employ many different strategies while working on the defendant’s behalf. Two major categories of defense strategies are:

  • Negating defense
  • Affirmative defense

Each of these defenses has different uses, but a negating defense effectively negates an essential point of the prosecution’s case, whereas an affirmative defense admits to committing a crime, but introduces a legal excuse or justification for it.

Negating Defense

A negating defense is the defense’s way of stating that an element of a charge was missing. Someone who is accused of larceny may have genuinely believed that the property was rightfully his or hers, thus negating the prosecution’s point that the defendant had intended to steal the item. This defense may cast reasonable doubt.

In a first-degree murder charge, the prosecution must prove that murder was premeditated, which means that the crime was planned in advance. A defense attorney may be able to cast reasonable doubt on the premeditation aspect, thus negating that point of the prosecution’s case, and thereby lessening the charge.

Affirmative Criminal Defense

For this type of defense, an attorney will introduce evidence to refute criminal liability. Examples of affirmative criminal defenses include:

  • Self defense
  • Coercion and duress
  • Abandonment and withdrawal
  • Necessity
  • Intoxication
  • Insanity
  • Entrapment

Affirmative criminal defenses do not claim outright innocence. Instead, a defense attorney will show that there were circumstances which may legally excuse a defendant for his or her actions.


Self-defense is a viable strategy when a defendant is deemed to have used the necessary amount of force to defend him or herself from an attack. If a defendant shot and killed an attacker who had aimed a gun at and threatened the defendant, self-defense may be a reasonable explanation, because the accused believed that he or she was reasonably taking the necessary action to avoid getting killed.

Coercion and Duress

Coercion and duress is a strategy which may be pertinent if a defendant was forced to commit a crime under threat of harm. Whether harm happened or not is irrelevant. What matters is it was the driving factor behind the crime of which the defendant stands accused. However, this defense is not viable if a defendant knowingly or negligently placed him or herself in the dangerous situation. For example, coercion and duress may not be a viable strategy if a defendant was involved in a drug deal, and the dealer threatened to harm the defendant’s mother if the suspect did not help him rob a nearby store. However, if a defendant was held at gunpoint after an attacker forced himself into a car and demanded that the defendant drive him to safety, coercion and duress are more likely to be a viable defense.

Abandonment and Withdrawal

Abandonment and withdrawal is a type of affirmative defense that is usable when a defendant can prove that he or she withdrew from a crime before the actual crime occurred.  For this to work, the defendant must demonstrate that his or her actions did not help cause the success of the crime and that the defendant notified the police in order to attempt to stop the crime. If the defendant planned to help others rob a convenience store, but then opted out of the situation and notified the police, abandonment and withdrawal might be a feasible defense.


Necessity is an affirmative defense where the defendant tried to avoid further harm by breaking the law. For example, if a defendant was driving with his wife and she went into labor, he may have committed several traffic violations to get her to a hospital quickly. While the man certainly broke the law, he did so because there was no reasonable alternative. A judge might rule that the danger posed by his driving was not greater than the potential harm to his wife if she did not receive proper medical attention.


Voluntary intoxication will not likely stand as a viable defense if the defendant chose to drink excessively. However, if it is proven that someone slipped something in the defendant’s drink, this affirmative defense will have a better chance of success. It is possible that a defendant who drank something which had been tampered with could have blacked out and committed a crime without intentionally doing so.


For this defense, the defendant must have a history of mental illness. A defendant who has schizophrenia and commits an egregious crime while suffering a psychotic episode is more likely to be placed in a mental institution rather than prison.


An entrapment defense is one in which a government official was involved. If an undercover officer asked to purchase a defendant’s narcotic painkillers, and the defendant refused multiple times but eventually relented after constant harassment, entrapment may be a viable defense. However, merely providing the defendant with an opportunity to commit a crime will not likely merit the successful use of this defense. If an undercover officer asked to purchase a defendant’s narcotic painkillers, the defendant could not cite entrapment if he readily handed the pills over in exchange for money.

Working with an Expert

Honesty with a defense attorney is critical. Concealing facts or providing half-truths may be discovered during the trial will not bode well for a defendant. However, there are always different sides to a story, and the prosecution will present its own version. A defense attorney will express another side of the story which truthfully depicts the defendant in the best context.

Only the specific circumstances of a case will decide which defense may work best for a defendant. A good criminal law defense attorney knows these techniques and can tailor a unique defense for each case. Remember, you are working with an expert attorney who is going to represent you and work on your behalf. By being honest, you and your lawyer can present the version of events which will best help your case.