17 Best Criminal Defense Strategies

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There are many legal criminal defenses available to fight criminal charges and win. And long treatises written on strategies and techniques in criminal defense. The job of a skilled criminal defense lawyer is to select the best criminal defense lawyer tactics given each unique case's facts and circumstances.

Here are 17 of the best legal defenses our lawyers use to defend clients:

1. Mistaken Identity

Incorrect witness identification is a major source for incorrect accusations. This can happen if a person’s description is similar to a criminal perpetrator or if a witness assumes someone committed a crime due to circumstances or they are trying to cover for a crime they committed.


Most offenses in California’s Penal Code include deliberate offenses in which the violator intentionally carried out the crime. If your criminal justice lawyer can show the act to be accidental, there is a substantial defense against the charge.

3. Duress or Immediate Danger

In the event that somebody carries out a crime simply because they believed they were in immediate risk of harm, their actions might not be considered a crime since they were made under duress.

4. Defendant has an Alibi

A defendant cannot be guilty of many offenses if their criminal defence lawyer can show they were elsewhere when the crime occurred and therefore couldn't have committed the alleged crime.

5. Entrapment

Entrapment happens when a normally law-abiding citizen commits an offense because of intimidation, coercion, or law enforcement going too far to persuade someone to violate the law. This is common with undercover police operations. Entrapment is most often raised by a good lawyer as a defense for prostitution, child pornography and drug offenses.

6. Police Misconduct

Unfortunately some law enforcement officials commit misconduct during their investigations. Police officers may wish to cover up a mistake they made during their initial investigation or they may just be convinced a suspect is guilty and engage in misconduct in order to build a stronger case.

Police misconduct can take many forms, but some of the most common are:
-- Lying or embellishing facts in court room testimony or in their reports
-- Improperly handling, planting or doctoring evidence
-- Using unnecessary force like tasers or pepper spray on cooperative subjects
-- Coercing witnesses and suspects

If your California criminal defense attorney can identify and prove police misconduct, then that may provide leverage for dismissing your case and potentially pursuing a civil rights claim seeking damages.

7. Compelled or False Confessions

In many cases, police have been known to coerce false admissions from innocent suspects using different mental strategies and even physical threats, starvation, and sleep deprivation. Juveniles are particularly vulnerable to coercion. If defense can show evidence of coercion, then a case can be made to have the admission tossed out.

8. Probable Cause

In 1968, the US Supreme Court ruled in the Terry vs. Ohio case that it is reasonable for an officer to stop an individual absent probable cause to arrest, as long as he can point to "specific articulable facts" that justify “probable cause” for the stop, search and arrest of that person. If there is not probable cause, defense can file a motion to suppress any improperly obtained evidence.

9. Falsely Accused

It is common that individuals are falsely accused of violations they didn’t commit. For example, child abuse, sex crime and domestic violence accusations can be made without any physical evidence. The best criminal defense attorneys can work to obtain a retraction of the accusation or show evidence that the accusations were false or impugn the credibility of the accuser.

10. Mistake of Fact

If an alleged crime was made under a reasonable and honest mistake of fact, then the person is not guilty of most criminal offenses. For example, accidentally taking someone’s property believing it was yours.

11. Necessity

In California the legal defense of “necessity” excuses criminal conduct when it is done only to avoid a greater harm. An accused can be acquitted of a charge if they believe that they or another person is in danger or about to be harmed and the only reasonable alternative is to do the criminal act. The necessity to commit the crime must be provable with evidence.

12. Self Defense or Defense of Others

California recognizes the “castle doctrine” which applies to one’s home, place of business, or other real property. An individual injuring another or using deadly force has no duty to retreat. But castle doctine rights end when an individual is no longer on their real property.

In general, force used against an intruder must be reasonable and proportionate to the harm reasonably feared. Therefore there is a valid defense if you believe that you or another person face imminent danger and you only use as much force as is reasonably necessary to alleviate that danger and escape is not a reasonable choice.

13. Involuntary Intoxication

Many criminal statutes require “specific intent” to commit crimes. If a defendant was involuntarily intoxicated, that is generally a complete defense to almost any crime. For example, if someone slips a drug into a defendant’s drink causing them to become involuntarily intoxicated. Or if a doctor prescribes a drug without warning of the potential side effects.

14. Plea of Insanity

In California you cannot be found guilty of a crime if you were legally insane when you committed it. The definition of legal insanity is known as the “McNaghten” rule and requires that the accused (1) did not understand the nature of the criminal act or (2) did not understand that the act was morally wrong.

15. Double Jeopardy

The US Constitution protects citizens from being prosecuted for the same crime twice and facing multiple punishments for the same crime. So if a defendant is acquitted of a crime, prosecution cannot try for the same offense, even if new evidence comes to light.

16. Statute of Limitations

State criminal statute of limitations laws forbid prosecutors from charging someone with a crime that was committed more than a specified number of years ago. The purpose of these laws is to ensure that convictions rely only upon evidence that hasn't deteriorated with time. After the time of the statute has run, the accused is essentially free. Statutes of limitation generally require an accused person to be: (1) In the state where the crime was committed, (2) Gainfully employed, (3) Visible and not in hiding or under an assumed identity.

Each state establishes its own criminal statute of limitations, usually with different limits for different kinds of crimes. Under California penal code §799, the California criminal statute of limitations are generally as follows with some exceptions:

-- No statute of limitation: Murder, other offenses punishable by death or life imprisonment, embezzlement of public funds
-- 6 years: Felonies punishable by 8 or more years in prison
-- 3 years: Felonies punishable by imprisonment of less than 8 years, Misdemeanor violation committed on a minor under 14
-- 2 years: Misdemeanor sexual exploitation by physician or therapist
year: Other misdemeanors

Statutory periods generally do not begin until the offense is or should have been discovered. And the statutory period is typically extended for up to 3 years of the time the accused is not in the state.

17. Beyond a Reasonable Doubt

In 1970, the US Supreme Court ruled in the In Re Winship case that the US Constitution requires that the government must meet the strict "beyond reasonable doubt" legal standard when establishing guilt of criminal charges for both adults and juveniles alike. Under US law, the more serious the consequences, the higher the standard of proof generally should be. Since criminal convictions involve potential loss of liberty in prison, the highest standard of proof applies.

The beyond reasonable doubt standard requires that the evidence be so convincing that no reasonable person would ever question the defendant’s guilt. This strict burden of proof requires that the jury (in some cases, the judge) have a moral certainty that the defendant is guilty and that the evidence offer no logical explanation or conclusion other than that the defendant committed the crime.

This strict standard favors the defendant since defense has to merely establish a reasonable doubt about any of the key elements required for the crime to succeed. Defense lawyers often impress upon juries that thinking the defendant committed the crime is not sufficient for a conviction. They must have moral certainty after considering all the facts that there is no doubt remaining and only one logical conclusion is left: the defendant is guilty.

ABOUT THE AUTHOR: Tsion Chudnovsky
Tsion Chudnovsky is the founder of Chudnovsky Law, a California law firm practicing criminal defense, immigration, DUI defense & personal injury law from offices in Los Angeles, Santa Monica & Newport Beach.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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