PART 2 - CHAPTER 7 Legal Defenses

• Jurisdiction: United States

Chapter 7 Legal Defenses

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

■ Identify and explain the differences among the categories of legal defenses that are available to people who have been accused of crimes.
■ Explain status defenses and discuss the controversies surrounding their use.
■ Compare and contrast actus reus and mens rea.
■ Identify the types of reactive defenses and discuss the types of situations where they apply.
■ Discuss the justification for the insanity defense, how it differs from one state to another, and its relationship to a defendant's competence to stand trial.
■ Explain how a reactive defense relates to police shootings.
■ Identify and discuss the provisions of the U.S. Constitution that are most often invoked by defense attorneys.

INTRODUCTION

At the arraignment, the prosecution presents a document that specifies the formal legal charges being brought, and the defendant enters an initial plea of either guilty or not guilty to these charges. At this point in the process, the defendant will almost always plead not guilty.

Based on what these formal charges are, defense attorneys will focus on collecting the information they will need to determine which potential legal defenses they might raise on behalf of their clients. The initial client interview and the discovery process, discussed in Chapter 8, provide some indications of which defenses might apply to the client's situation.

Defense attorneys need to have a pretty good idea of what actually happened, why it happened, the specific charges being filed, and the nature of the evidence the prosecutor can present at trial before evaluating which legal defenses might be appropriate to present in the client's case. In analyzing some of the examples used in this chapter, you may find it useful to go back and review the discussions of various offenses in Chapter 3.

A. DENIAL OF THE FACTS QR ELEMENTS

A common defense is to deny the acts the prosecution claims the defendant carried out. For example, the defendant may dispute he fired the gun that killed the victim or may deny that the illegal drugs found in her car were hers.

1. ALIBI DEFENSE

An alibi defense is a type of denial defense in which is the defense claims that the defendant could not have committed the crime because the accused was not at the location of the crime when it was committed. For example, a man charged with robbery might claim that he was playing poker at a friend's home at the time the robbery was taking place on the other side of town.

Although it seems obvious that defendants could not have committed a crime in one location while they were doing something else in a different part of town, or even in a different state, it is often difficult to prove the alibi defense is valid. Most judges and juries will not give any weight to a defendant's claim that he was home sleeping or at a movie if there are no eyewitnesses to back up the alibi. Even when there are alibi witnesses, they are frequently friends or family of the accused—people who may appear to have a motive to lie.

Because the term alibi has such a negative connotation, defense attorneys do not use it when they are before the jury, and sometimes present motions in limine to bar the use of this term at the trial. (We will discuss motions in limine in Chapter 11.)

Perhaps one of the most well-known successful uses of the alibi defense can be found in the criminal prosecution of O. J. Simpson for the murder of his wife, Nicole, and her friend Ronald Goldman. At his trial, defense attorney Johnnie Cochran claimed that Simpson never left his house on the evening of the killings and he was alone in the house packing to fly to Chicago. Cochran also maintained that Simpson went outside to hit some golf balls in his yard. The jury acquitted Simpson of the murder charges.

Another example of a high-profile defendant successfully using an alibi defense involved the prosecution of actor Robert Blake for fatally shooting his wife, Bonnie Lee Bakley, outside a restaurant where they had just eaten dinner. Blake's attorneys claimed that he left his wife at the car when he went back to the restaurant to get a handgun that he had forgotten in the booth where they ate and she was shot while he was gone. Blake was found not guilty of Bakley's murder and of one of two counts of solicitation of murder. A third count was dropped after it was revealed that the jury was deadlocked 11-1 in favor of acquittal.

In federal court, the defense must disclose its intent to raise an alibi defense and must identify all alibi witnesses during the discovery phase of a criminal prosecution. Rule 12.1(a) requires the defendant to give notice of intent to assert the alibi defense within 14 days of the prosecutor's demand. The defense must name the specific place where the defendant claims to have been when the crime was allegedly committed, along with the names, addresses, and telephone numbers of the alibi witnesses. On request, the defendant must also furnish the government with their alibi witnesses' written statements after their direct examination at trial.¹

Once the defendant has served notice on the prosecution, the prosecutor is obligated to furnish the defense with the names, addresses, and telephone numbers of the witnesses who can establish the accused's presence at the scene of the crime in addition to information about other witnesses it intends to call to rebut the alibi witnesses' testimony.² The defendant does not need to request the information. Instead, 12.1(b)(1) requires the government to disclose its alibi witness information within 14 days of service of the notice of intent to raise the alibi defense.

If either side fails to provide alibi information within their respective 14-day time limits, the court may exclude the testimony of undisclosed witnesses.³ However, courts have discretion to impose less drastic remedies, such as continuing the case so that the surprised party can contact the newly disclosed witnesses and otherwise prepare for their testimony.

More than 40 states mandate that the defense give advance notice of the defendant's intent to raise the alibi defense.⁴ Most alibi provisions are similar to the federal requirements found in Rule 12.1.⁵ You should check the requirements of your state for the procedures for requesting and disclosing alibi information.

Interviewing Alibi Witnesses
If you, as a paralegal, are involved in interviewing alibi witnesses, it is particularly important to pay close attention to details of their stories and to elicit information that can be compared with the defendant's story. For instance, if the accused maintains that he was at a movie, have the witness give a detailed account of everything that took place in the defendant's presence before and after the show. Also have witnesses relate the plot of the movie, actors' names, previews shown, the time the movie ended, and other key information. If they have any written documents, such as ticket stubs or charge card receipts, request that they produce them for you.

2. ADMITTING SOME, BUT NOT ALL, OF THE ELEMENTS

Sometimes the accused will admit some of the elements of the charge but deny others. The hypothetical cases in this textbook illustrate how the denial of certain elements of the charges can be an effective defense. In Hypothetical Case 1, Bud Cook could admit to driving his pickup truck but deny that the element that he caused the death of another person. If the bicyclist caused his own death by riding in a reckless manner, Bud would not be criminally responsible for his death. Note, however, this admission might make it easier for the state to convict him of driving under the influence (DUI). In Hypothetical Case 2, Brandon Turner can admit that he drove a car that contained a weapon and illegal drugs but claim that the drugs and the gun were not his. If a jury accepted this defense, he would be acquitted. If Officer Smith (in Hypothetical 5) claimed that Mendoza yelled profanities and threatened to hurt the officer, the prosecution would have to refute Smith's claims.

A defendant charged with crimes connected to the storming of the U.S. Capitol on January 6, 2021, successfully took this approach. The U.S. Attorney charged Matthew Martin with (1) entering and remaining in a restricted building, (2) disorderly and disruptive conduct in a restricted building, (3) violent entry and disorderly conduct in the Capitol building, and (4) parading, demonstrating or picketing in the Capitol building. Martin denied that he engaged in criminal activity and testified in his own defense. In a bench trial, the U.S. District judge acquitted him of all four charges. The evidence included a video showing two police officers standing near the rotunda doors and allowing people to enter as Martin approached. One officer appeared to lean back before Martin placed a hand on the officer's shoulder as a possible sign of gratitude. The judge said that it was not unreasonable for the defendant to believe that the officers were allowing him to enter the Capitol, even though alarms were blaring and broken glass was strewn about the floor. The judge found Martin's testimony to be credible.

At one time, this was a common approach taken by the defense in sexual assault cases. Defendants would acknowledge the conduct while claiming that there was consent. This scenario requires the jury to decide whether to believe the accused or the alleged victim. If it wasn't clear whose testimony was most believable, the jury would find the defendant not guilty because the prosecution did not prove its case beyond a reasonable doubt. In recent times, it appears this has changed. For instance, in 2020, a jury found the former movie mogul Harvey Weinstein guilty of rape and another criminal sexual act. Weinstein did not deny his actions but claimed that his encounters were consensual.

Sometimes an alleged sexual assault victim remains silent, even...