Criminal Defense

What Is a ‘Factual Defense’ in Criminal Law?

June 17, 2022 by Sarah Edwards in Criminal Defense  
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What Is a ‘Factual Defense’ In Criminal Law?

When a criminal defense attorney prepares to defend a client in court, they must decide which defense approach will best serve the circumstances of a case.

There are a great number of possible defenses that a criminal defense lawyer can choose. The type of defense chosen in a given case depends on the nature of the crime, extenuating circumstances, the amount of evidence against the defendant, and other factors.

A factual defense is a common form of defense used in criminal court proceedings. Factual defense is a defense strategy in which the criminal defense attorney uses factual evidence to prove that the defendant could not have committed the crime in question.

This differs in objective from other types of defense. For example, a legal defense uses matters of law to overturn allegations, like a case brought forth after the statute of limitations has passed.

Similarly, in an affirmative defense, the defendant admits to having committed the actions they are accused of, but for non-criminal reasons, like self-defense.

Factual defense is commonly referred to as the “impossibility defense” because the goal of the argument is to prove that it would have been impossible for the defendant to have committed the crime of which they stand accused.

Examples of How Factual Defense is Used

A factual defense must rest on facts that prove the impossibility of the accusations. Because this can be achieved in several ways, many different types of factual defense arguments can be used in court. Below are some common examples where a factual defense best serves to exonerate a defendant of charges:

Self Defense – The ‘self-defense’ defense is a commonly used factual defense.

A good example of this defense being successfully deployed is in the case of Kyle Rittenhouse.

Alibi Defense – The alibi defense is perhaps the most known and most commonly used example of a factual defense. Using this defense involves offering proof that the defendant could not have committed the crime they are accused of because they have an alibi confirming that they were elsewhere or in the company of others at the time of the crime.

Crime Did Not Occur – A factual defense can be used to prove that the alleged crime was never committed. For example, an individual might be facing charges of theft over an item that was never actually stolen. In this case, the defense attorney can argue that factually, no crime was committed, and thus the defendant is not guilty of wrongdoing.

When factual defense seeks to show that no crime occurred, consent and withdrawal are two additional types of defense commonly used:

Consent Defense – argues that no crime was committed because the alleged witness was a willing participant. This argument might be used against an accusation of sexual misconduct.

Withdrawal Defense – admits that a defendant considered or planned to participate in a crime but later withdrew from participation and therefore cannot be held guilty for an act they did not commit.

Impossibility of the Allegations – A defense attorney can also use a factual defense to argue that an alleged crime would have been impossible to commit. For example, a defendant may be facing charges of attempted murder after waving a gun at another person. If the gun was not loaded, the defense could argue that it is physically impossible to kill a person by firing an unloaded gun, and thus attempted murder was an impossible outcome of the circumstances.

Proving Factual Defense

Based on the circumstances of the crimes and the grounds for claiming a factual defense, the use of this form of defense can produce varied outcomes. Ultimately, success with a factual defense depends on the amount of conclusive evidence that can be used to back up the argument.

When a factual defense rests on arguments related to an alibi or facts of the crime, it can be easier to prove than those that resort to the impossibility of illegality. Fortunately, a factual defense can undermine the prosecutor’s argument, even when the form it takes cannot provide conclusive evidence, as an alibi defense often can.

Ultimately the U.S. justice system places the burden of proof upon the prosecutor. The prosecutor must either prove the defendant’s guilt beyond a reasonable doubt or disprove the defense’s argument beyond a reasonable doubt.

The sole exception is when the defense chooses to use an affirmative defense, in which case the burden of proof falls to the defense. However, this is not the case with a factual defense.

When to Claim a Factual Defense

A factual defense can be highly effective. At times, a factual defense alone is sufficient to disprove allegations, like when evidence makes the alibi defense impossible to refute. The greater the evidence, the stronger a factual defense will likely be in court.

However, a skilled criminal defense attorney will not generally rest a case on one point alone. An attorney will consider all aspects of a case and all possible arguments before settling on the strongest defense for a client.

Related Articles:

What Is An ‘Affirmative Defense’ In Criminal Law?

What is a ‘Procedural Defense’ in Criminal Law?

Unconsciousness as a Criminal Defense

‘Self-Defense’ as a Criminal Defense

Common Criminal Defenses

Possible DUI Defenses

The Insanity Defense

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