Here our lawyers share the best criminal defense strategies and defense lawyer tactics we use to fight criminal charges, win cases and get a case dismissed in 2022.
The best part?
These proven legal defenses and arguments are distilled from our former Prosecutors’ experience handling over 8,000 criminal cases and jury trials.
It is important to remember that defendants are innocent until prosecutors prove guilt beyond a reasonable doubt.
8 key factors drive what your best defense strategy is:
- Defendant’s explanation of what happened, why and credibility.
- Witness testimony and credibility.
- Provable facts and physical evidence.
- Police reports, errors and credibility.
- Expert, 3rd party reports and testimony.
- Penal code charge and the required crime elements to prove.
- Criminal prosecutor strategy & history.
- Judicial precedent & the judge’s history.
The job of a criminal defense lawyer is to select the best criminal defense attorney tactics after reviewing a case’s facts and circumstances.
Every case is unique and the best criminal defense attorneys weigh all factors to develop a case theory and criminal defense strategy is most likely to succeed.
Criminal defense strategies are legal arguments and actions taken to get criminal charges dismissed and secure a defendant’s freedom. They involve exposing legal flaws and doubts about any criminal elements the prosecutor must prove beyond a reasonable doubt in order to win a conviction.
If you’re facing prison or harsh penalties, it is key to consult a top criminal lawyer. No matter how smart you are, it is nearly impossible to competently defend yourself.
Let’s dive in with these criminal defense examples…
The 17 Best Criminal Defense Strategies
1. Mistaken identity
Incorrect witness identification is a major source of 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.
This is key:
If your criminal justice lawyer can show the act to be accidental without criminal intent, there is a substantial defense against the charge. Even if it is a first-degree murder charge.
3. Duress or immediate danger
In the event that somebody carries out a crime simply because they believed they were at immediate risk of harm, their actions might not be considered a crime since they were made under duress.
4. 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 the guilt of criminal charges for both adults and juveniles alike.
Under US law, the more serious the consequences, the higher the burden 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 standard requires:
The jury (in some cases, the judge) must have a moral certainty that the defendant is guilty and that the evidence offers no logical explanation or conclusion other than the defendant committed the crime.
This strict standard favors the defendant because:
The defense has to merely establish reasonable doubt about any of the key elements required for the crime to succeed. Good criminal 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. Criminal jury instructions note that all 12 jurors must unanimously agree on the verdict to convict.
5. Defendant has an alibi
A defendant cannot be guilty of many offenses if their Santa Monica criminal defense attorney can show they were elsewhere when the crime occurred and therefore couldn’t have committed the alleged crime.
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 occurs most often with:
Various types of undercover police operations. Entrapment is most often raised by a good lawyer as a defense in court for prostitution, child pornography, and drug crimes.
7. 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 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 Newport Beach criminal attorney can identify and prove police misconduct, that provides leverage for dismissing your case and potentially pursuing a civil rights claim seeking damages.
8. 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 attorney trial tactics can show evidence of coercion, then a case can be made to have the admission tossed out and excluded from evidence.
9. 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.
his is important:
If there is no probable cause, the defense can file a motion to suppress any improperly obtained evidence. If key evidence is suppressed, this can cause a case to be dismissed.
10. Falsely accused
A top Long Beach criminal attorney can work to obtain a retraction of the accusation or show evidence that the accusations were false or impugn the credibility of the accuser.
11. 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 due to lack of criminal intent.
Accidentally taking someone’s property believing it was yours.
In California, the legal defense of “necessity” excuses criminal conduct when it is done only to avoid 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.
13. 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 doctrine rights end when an individual is no longer on their real property.
Keep in mind:
In general, the force used against an intruder must be reasonable and proportionate to the harm reasonably feared.
Therefore there is a valid defense against a battery crime, for example, 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.
14. Involuntary intoxication
Most criminal statutes require “specific intent” to commit crimes. If a defendant was involuntarily intoxicated, that is generally a complete defense to almost any crime.
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. However, you can only claim involuntary intoxication if you did not voluntarily take any intoxicating drugs or alcohol.
15. Plea of insanity
In most instances, you cannot be found guilty of a crime if you were legally insane when you committed it because willful intent is a required criminal element.
California courts utilize a definition of legal insanity is known as the M’Naghten Rule (pronounced and sometimes spelled as McNaughton) named after Daniel M’Naghten, a Scottish woodturner who murdered an English official in 1843 while suffering from paranoid delusions.
The M’Naghten Rule requires that the accused:
- Did not understand the nature of the criminal act, or
- Did not understand that the act was morally wrong.
Kansas, Montana, Idaho, and Utah do not allow the insanity defense. Other state jurisdictions each utilize one or more of the four following legal tests of insanity:
- Model Penal Code Test.
- Durham Rule.
- Irresistible Impulse Test.
- M’Naghten Rule.
The insanity defense test utilized by each state jurisdiction is reviewed here.
6. Double jeopardy
The US Constitution protects citizens from being prosecuted for the same crime twice and facing multiple punishments for the same crime. A suspect cannot be tried twice in the same court for the same crimes.
So if a defendant is acquitted of a crime, the prosecution cannot try for the same offense, even if new evidence comes to light.
17. Statute of limitations
State criminal statute of limitations laws forbids criminal 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 has not 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:
- In the state where the crime was committed,
- Gainfully employed, and
- 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 is 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.
- 1 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.