Criminal Defense

Common Criminal Defenses

May 12, 2018 by Seppi Esfandi in Criminal Defense  
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Common Criminal Defenses To Criminal Offenses

The following are some of the more common legal defenses that may be applicable to your criminal charges. It’s always best to speak with a criminal defense specialist about the details of your case.

1. Accident

This defense can be used only if the criminal offense involves the element of intent. That is, offenses where the alleged perpetrator purposefully committed a criminal act, such as theft. If the conduct in question was accidental, there is a valid defense against the charge.

It’s important to note that some criminal offenses do not have an intent requirement, thus claiming it was an accident is not a valid defense. Speaking with a criminal defense attorney about the details of your case is the best way to find out your best options.


  • You are at the grocery store, and you place a bottle of pain pills in your bag and when you go to check out, you decide to not purchase the pills, but get distracted and forget to remove them from your bag. You walk out of the store with the pills completely by accident.

2. Mistake

Sometimes a defendant’s action is a simple “mistake of fact”, with no malicious activity intended. In other words, you made a mistake that seemed like you committed a criminal act. This defense is not to be confused with a mistake of law (the defendant not being aware that their act was a crime), which is typically not a defense. This defense is only effective where the mistake of fact is reasonable, given the circumstances.


  • You are at the airport, and you accidentally pick up someone else’s luggage that looks exactly like yours, and you thought it was yours. You are then wrongly charged with theft at the airport.

3. Self Defense

In essence, self-defense means that you were forced to take reasonable action in order to protect yourself or others. An act taken in self-defense is not a crime, and carries no punishment. In general, the defensive force used must be proportionate to the threat.


  • You are in your home with your wife and kids, and a masked stranger comes in through a window with a knife. You shoot them with a pistol and they die. You are not charged with murder because you were acting in self-defense.

4. Alibi

An alibi is a third party that can confirm your side of events, and their statements lead to the conclusion that you did not commit the crime you are charged with. It is important to corroborate any alibi for it to hold weight in your case. This includes credible witness statements and physical evidence (such as tickets, receipts, video footage).


  • You are accused of committing a robbery that occurred on Saturday night at exactly 11:35 PM. However, you could not possibly be guilty of this particular offense because several people confirmed you were at a restaurant in another part of town at that exact same time.

5. Consent

This defense may clear you of criminal liability if it can be successfully demonstrated that, because someone gave you permission to do something, there was no crime. However, public policy requires courts to lay down limits on the extent of the consent. In other words, the defense must be reasonable given the circumstances.


  • You were accused of stealing a car owned by your uncle, but in fact, your uncle gave you permission to use the vehicle. He was mad that you were late returning the car, but in fact, you had the full intent to return his car to him, and you were late due to circumstances beyond your control.

6. Necessity

In rare instances, it may be necessary to commit a crime for the ‘greater good, or to avoid something worse. In such a case, a defense can be raised that would exonerate you from criminal liability, given the special circumstances.


  • You’ve been drinking at a bar, and end up in a bar fight. Someone pulls a knife out and is chasing you into the parking lot. Even though you are legally drunk, you get into a vehicle and drive away to escape being stabbed. You get pulled over a few minutes later for speeding and drunk driving. Since you feared for your life, the DUI may be dropped with a proper defense attorney.

7. Provocation

This defense is also known as the “heat of passion” defense. Provocation is a series of events or circumstances that cause an otherwise reasonable person to lose self-control or their sense of judgment. In these cases, the criminal act is less morally culpable than a premeditated act done out of malice aforethought. It is most often used to mitigate a charge of murder to manslaughter.


  • Your husband has been cheating on you for nearly a year with a young woman, and they both rub it in your face with daily texts and posts online. You see both of them driving down the road while you are driving home from work. You turn around to confront them. You pull up beside them and ask them to pull over. They do not. They speed up, and you chase them. They then suddenly slam on their brakes causing you to ram them from behind. Your husband is critically injured during the collision and ends up dying. You are charged with premeditated murder. Your defense attorney is able to get the charge significantly reduced with a Provocation defense.

8. Entrapment

Entrapment occurs when someone only commits an offense due to harassment, threats, or extreme coercion on the part of law enforcement agents. The entrapment defense is most effective when it can be shown that police pushed the limits by acting too aggressively in getting normally law-abiding people to violate the law. In other words, the police can lie, but they are limited in the amount of lying and harassment they can do.


  • An undercover DEA agent repeatedly lies about needing some of your prescription drugs for his dying wife. You refuse several times but eventually give in due to sympathy for her after he tells you that she will die if he doesn’t give it to her.

9. Illegal Search, Seizure, or Arrest

The Fourth Amendment of the U.S. Constitution protects your privacy by placing limits on the power of law enforcement agencies to make arrests, search people and their property, and seize contraband (such as your computer or drugs). If the police did not follow the law precisely at every step, then an illegal search and seizure defense can be your ticket to a dismissal.


  • You are sitting in the park, minding your own business and the police come up to you in an effort to search you for drugs or weapons. You refuse their request to search, and they put you in handcuffs and search anyway. They end up seizing prescription drugs and putting you in jail for possession of narcotics. You might have a valid defense that they illegally searched and seized your property.

10. Lack of Probable Cause

The U.S. Constitution requires that the police have probable cause that a person has committed a crime before they can justify a stop and arrest of that person. They cannot just “Stop and Frisk” people at random.

When probable cause is absent, the defendant can challenge the stop, search or arrest for lack of Probable Cause by making a motion to suppress pursuant to California Penal Code 1538.5 PC. This usually leads to a dismissal.


  • You are driving on the highway from California to Arizona, and the police pull you over in Arizona simply because you have license tags from a Marijuana-friendly state. They find marijuana in your car and arrest you.

More Criminal Defenses



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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 21 years of practice defending a variety of criminal cases.

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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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