Top Defenses to Criminal Charges

Spolin Law P.C. fights for its clients with all available legal defenses, some of which are listed here. To learn more about each defense, scroll down to read a description of each possible defense.

Affirmative Defenses:

    Lack of Capacity
    Self-Defense and Defense of Others
    Statutes of Limitations

Denial Defenses:

    Abandonment or Withdrawal
    Mistake of Fact

Constitutional Defenses:

    Coerced Confessions
    Double Jeopardy
    Illegal Search or Seizure

This page contains details of all of the criminal defenses outlined above.

The Importance of a Strong Criminal Defense

When you’re charged with a crime in California, the prosecutor must prove your guilt beyond a reasonable doubt. Although that is a high standard of proof, winning your case still requires raising strong legal defenses to overcome the prosecution’s claims. A strong defense helps you win your case by:

  • Raising reasonable doubts with the jury. If the prosecution can’t convince the jury of your guilt beyond a reasonable doubt, then you will be acquitted. You can present evidence that casts doubt on the prosecution’s claim or provides an alternative perspective on the facts in your case.
  • Proving a legal excuse or justification for your actions. California’s criminal laws recognize that context matters. Behavior that may be criminal in some contexts shouldn’t be in others. Even if the prosecution has a strong case against you, you may be able to prove that your conduct was nevertheless legal because of an excuse or justification.
  • Showing unlawful behavior by the police or prosecution. To protect defendants’ rights, U.S. and California law require police and prosecutors to follow certain rules in detecting, investigating, and prosecuting alleged crimes. If they break those rules, the law provides a remedy to the defendant, ranging from suppression of illegally obtained evidence to complete dismissal of the charges.

Types of California Criminal Defenses

Criminal defenses come in three forms: affirmative defenses, denial defenses, and constitutional defenses. Affirmative defenses demonstrate that the defendant should be acquitted regardless of whether the prosecution has proven the elements of a crime. The “elements” are the facts that the prosecution must prove to convict the defendant. In contrast, denial defenses directly refute one or more elements of the crime charged. Finally, constitutional defenses show that the police or prosecutors have violated the defendant’s constitutional rights, requiring some evidence to be excluded or the case dismissed.

A Los Angeles criminal defense attorney can help you determine which criminal defenses will work best for you. In reality, you will probably assert several defenses to obtain the best outcome in your case.

Affirmative Criminal Defenses

Affirmative defenses are defenses that do not deny the elements of a crime. Instead, they offer additional facts that excuse or justify the defendant’s actions, or for some other reason require an acquittal. Because of this, affirmative defenses must normally be proven by the defendant by a preponderance of the evidence.

Some common affirmative defenses in California include:

  • Entrapment
  • Lack of Capacity
  • Necessity
  • Self-Defense and Defense of Others
  • Statutes of Limitations
  • Entrapment

    Entrapment is the inducement of criminal conduct by the police or someone acting on their behalf. California courts use an objective test to determine whether entrapment has occurred. A particular defendant’s character, predisposition to commit a crime, and subjective intent are irrelevant.

    Instead, to prove entrapment, the defendant must show that the actions of the police would have likely induced a normally law-abiding person to commit the crime. That the police presented an opportunity for a crime will not suffice. For this defense to succeed, the defendant must prove that the police pressured him or her to commit the crime by “overbearing conduct.”

    In considering a claim of entrapment, courts review the police conduct in light of the circumstances of each case, including by asking:

    • What happened before the crime was committed?
    • How did the defendant respond to the police inducements?
    • How serious is the crime?
    • How hard is it to discover the crime normally?

    Lack of Capacity

    Under California law, some defendants are categorically unable to commit a crime because they lack the mental capacity to do so.

    • Children younger than 14 are presumed to be incapable of committing a crime. The prosecution can overcome this presumption by clear proof that at the time the child committed the alleged crime, he or she knew it was wrong.
    • Insanity. A person who commits a crime while incapable of knowing the nature and quality of his or her acts and of distinguishing right from wrong can be found not guilty by reason of insanity. However, if this defense is successful, the court will usually commit the defendant to a mental hospital.
    • Unconsciousness. A person who acts without being conscious of his or her actions cannot commit a crime. However, a defendant who becomes unconscious because of voluntary intoxication is limited in the extent to which he or she can use this defense.


    The defense of necessity is available to defendants who commit a crime to prevent a greater evil from occurring. To prevail on the defense, a defendant must prove by a preponderance of the evidence that he or she acted:

    • To prevent a significant evil
    • With no adequate alternative
    • Without creating a greater danger than the one avoided
    • With a good faith belief in the necessity of his or her actions
    • With that belief being objectively reasonable
    • Under circumstances in which the defendant did not substantially contribute to the emergency.

    The “significant evil” to be prevented can be a future one, but it cannot be merely speculative. In addition, the more time there is between the defendant’s actions and the evil to be prevented, the more likely it will be that the defendant had an adequate alternative to committing a crime.

    Self-Defense and Defense of Others – Penal Code §§ 197 – 198, 692 – 694

    Some acts that would otherwise be crimes—such as assault or homicide—can be legally justified when committed in self-defense or defense of others. In general, the justification of self-defense is available:

    • To prevent a crime against oneself or another person; or
    • To prevent an illegal attempt to take or injure property by force.

    However, lethal force may not be used unless the defendant is resisting an attempt to murder or do great bodily harm to a person or to commit a felony. A defendant can rely on self-defense in a homicide case only if the following are true:

    • At the time the defendant acted, he or she honestly believed that (1) he or she (or another person) was in imminent danger of death or great bodily harm, and (2) his or her conduct was necessary to prevent that injury.
    • A reasonable person in the same circumstances would have believed the same imminent danger existed and responded similarly.

    Like denial defenses, self-defense must be disproven by the prosecution, not proven by the defendant.

    Statutes of Limitations – Penal Code §§ 799 – 805

    Most types of crimes in California are subject to a statute of limitations, which prevents the state from prosecuting a crime after a specified amount of time has passed. Different crimes are subject to different statutes of limitations:

    • A one-year limit applies to misdemeanors, except that certain misdemeanors with a victim under 14 years old are subject to a three-year statute of limitations.
    • A three-year limit applies to crimes punishable by imprisonment, except for those to which a six-year period applies or that have no limitations period. /li>
    • A six-year limit applies to crimes punishable by imprisonment for at least eight years, other than those for which there is no limit. /li>
    • No limit applies to crimes punishable by death or life imprisonment./li>

    If the defendant raises the statute of limitations in a pretrial motion to dismiss, the defendant must prove that the limitations period has expired by a preponderance of the evidence. At trial, the prosecution has the burden of proving that the statute of limitations has not expired by a preponderance of the evidence.

    Denial Defenses

    Unlike affirmative defenses, denial defenses defeat a charge by denying one or more elements of the crime. Because denial defenses refute the elements of a crime, the burden is generally on the prosecution to disprove them, rather than on the defendant to prove them. The defendant can make these defenses whenever there is enough evidence to raise a reasonable doubt about them.

    Some common denial defenses include:

    • Abandonment or Withdrawal
    • Accident
    • Alibi
    • Consent
    • Duress
    • Mistake of Fact

    Abandonment or Withdrawal

    In addition to completed crimes—like robbery or murder—California also makes it a crime to attempt such acts. However, if the defendant abandons an attempt before committing an overt act in furtherance of the crime, he or she may be acquitted.

    If the defendant was acting together with others, successfully raising the defense of abandonment (also known as withdrawal) requires that the defendant notified every other person involved that he or she would not participate, and that notification must have been early enough to prevent the crime.

    Accident – Penal Code § 26

    The California Penal Code states that a person cannot commit a crime if he or she “committed the act . . . through misfortune or by accident.” However, this defense only applies “when it appears that there was no evil design, intention, or culpable negligence.”


    Normally, a defendant must be present at the scene of a crime to have committed it. An alibi defense is one in which the defendant claims to have been elsewhere at that time. Of course, this defense will not succeed if the defendant is charged merely as an aider or abettor of another’s crime or a coconspirator with others.


    A victim’s consent is usually not a defense to a crime. However, when lack of consent is an element of the crime alleged, consent is a denial defense that must be disproven by the prosecutor.

    For example, to convict a defendant of rape, the prosecution must prove that the victim did not consent to sexual intercourse. In such cases, evidence of consent refutes that essential element of the crime. In contrast, lack of consent is not an element of unlawful sexual intercourse with a minor, meaning consent is not a defense to that crime.

    Duress – Penal Code § 26

    Duress is a defense that applies when the defendant was forced to commit a crime by a threat to his or her own life. This defense applies when:

    • The threats would cause a reasonable person to fear that his or her life would be in immediate danger if he or she did not commit the crime; and
    • The defendant actually believed his or her life was in immediate danger because of those threats.

    Duress is only available if the threat against the defendant posed an immediate danger to his or her life, not if it was only a threat of future harm. In addition, duress cannot be used as a defense in murder cases or if the crime charged is punishable by death.

    Mistake of Fact

    A defendant’s mistaken belief about facts can negate some elements a crime. For example, if a defendant shot a victim with a gun that he or she believed was not loaded, that mistaken belief would show that the defendant did not meet the “malice aforethought” element required for a murder conviction.

    However, a mistaken belief about the law generally is not available as a defense. A defendant can be convicted of a crime regardless of whether he or she realized his or her conduct was illegal.

    Constitutional Defenses

    A constitutional defense is a defense based on a provision of the U.S. Constitution. Except for double jeopardy, these defenses normally do not directly result in an acquittal or dismissal. Instead, they result in some evidence being excluded from trial, making it harder for the prosecution to prove its case.

    Among the most important constitutional defenses are:

    • Coerced Confessions
    • Double Jeopardy
    • Illegal Search or Seizure

    Coerced Confessions – U.S. Constitution Amendment V

    The Fifth Amendment to the U.S. Constitution prohibits the government from compelling a person to “be a witness against himself.” To help protect this right, the U.S. Supreme Court requires police and prosecutors to follow certain rules. These include:

    • Miranda warnings. If the police want to use a person’s testimony against him or her, and that person is in police custody during the interrogation, the police must first advise the person of certain rights, including the right to remain silent and the right to have an attorney present during police questioning.
    • Presence of attorney during custodial interrogations. A person in police custody is entitled to have an attorney present during an interrogation. If the person cannot afford an attorney, then he or she is entitled to have one appointed by the court.
    • Right not to testify at trial. A defendant is entitled to remain silent at his or her criminal trial, and cannot be compelled to testify. In addition, the prosecution is prohibited from commenting to the jury about the defendant’s decision not to testify.

    Failure by the police or prosecution to follow these rules can result in any evidence obtained during an interrogation being excluded from trial, or even dismissal of the case.

    Double Jeopardy – U.S. Constitution Amendment V

    The Fifth Amendment’s Double Jeopardy Clause prohibits the government from putting a person “in jeopardy of life or limb” more than once for the same offense. This means that:

    • A defendant who is acquitted or convicted cannot be tried again for the same crime. However, if the defendant’s conduct violates both state and federal law, then both the state and federal governments can prosecute the defendant.
    • A defendant cannot be subjected to multiple punishments for the same crime. This means that a court that reconvicts a defendant who successfully appeals a conviction must “credit” the defendant for the punishment already endured.

    Illegal Search or Seizure – U.S. Constitution Amendment IV

    The U.S. Constitution’s Fourth Amendment prohibits “unreasonable searches and seizures.” The U.S. Supreme Court has interpreted this prohibition as generally requiring that police obtain a warrant before conducting a search or seizure, although some significant exceptions apply to that requirement.

    If the police violate the Fourth Amendment, then any evidence they obtain as a result of that violation must be excluded from trial.

    How a Good California Law Attorney Can Help Build Your Defense

    Understanding criminal defenses and raising the appropriate ones in your case is critical to your success before and after trial. An experienced California criminal defense attorney can help build your defense and win your case by:

    • Investigating the facts and gathering evidence. Building a strong defense requires understanding all the facts in a case. The criminal defense attorneys at Spolin Law P.C. work diligently to investigate those facts and uncover evidence to help establish your defenses.
    • Filing motions in court to challenge illegal evidence. Nobody is above the law, including police and prosecutors. Spolin Law P.C. drafts persuasive motions that show the court when evidence must be excluded from trial because the police or prosecutors have engaged in unlawful behavior.
    • Pointing out weaknesses in the prosecution’s case. The standard of proof in criminal cases is the highest in the law: beyond a reasonable doubt. By highlighting weaknesses in the prosecution’s evidence, Spolin Law P.C. helps the jury see how the prosecutor has failed to meet that high standard.
    • Raising and proving affirmative defenses. The attorneys at Spolin Law P.C. know how to expertly present the evidence they have gathered in your case to the jury. In doing so, they can persuade the jury that your conduct was legally justified or excusable, regardless of the prosecution’s evidence.

    For help building a strong defense in your case, contact the California law attorneys at Spolin Law P.C. today. Call (310) 424-5816 to find out what we can do for you.