TIP OF THE MONTH ARCHIVES

These tips are intended to educate the reader about areas of the law that make up my practice. This information may be helpful to do-it-yourselfers or may simply increase the reader’s knowledge and understanding of the legal system.

Defenses to Crimes

Defenses to crimes can be divided into three types:

1) Procedural defenses. These are technical defenses based on problems with the criminal process itself, such as improper venue (wrong county), lack of subject matter jurisdiction, evidence illegally obtained (illegal search and seizure), or violation of the right to a speedy trial.

2) Case-in-chief defenses. In Oregon, these are defenses where the State has the burden of disproving the defense beyond a reasonable doubt. A humorous name for one of these defenses is the SODDI defense (Some Other Dude Did It). A variation of that defense is the alibi defense, where the defendant proves that he was not present at the scene (or even in the state) when the crime occurred.

3) Affirmative Defenses. In Oregon, these are defenses where the defendant has the burden of proving the defense by a preponderance of the evidence (more likely than not).

Affirmative defenses are disfavored in the law; the rules put the burden of proof on the defense. A classic example is the insanity defense. Society does not want to make it easy for someone to claim they are insane. Therefore, a defendant wanting to assert the insanity defense has the burden of proving he is insane; the prosecution does not have the burden of proving the defendant is not insane.

The following are some of the defenses to a crime in Oregon, divided by type of defense:

Affirmative Defenses (Defendant has burden)

insanity

medical need for marijuana

extreme emotional disturbance as a defense to murder

peyote use in religious ceremony

 

Case-in-chief defenses (State has burden)

alibi

intoxication

self-defense/defense of others

duress

choice of evils

entrapment

 

Here is a little more information about some common affirmative and case-in-chief defenses.

Alibi. The defendant must give the State written notice ahead of time of his intent to use this defense. This is to allow the State to prepare to counter the alibi. If the defendant gives written notice, the State has the burden of proof to show that the alibi is false.

Necessity/Choice of Evils. This defense admits that the defendant committed the crime, but asserts that committing the crime was better than the alternative. For example, if person steals in order to keep his children from starving or drives while intoxicated in order to get someone to the hospital and save their life. For this defense to apply, the following must be true:

 · The defendant must reasonably believe the threat of harm is imminent

 · Violating the law is the only way to prevent the harm

 · The harm caused by violation of the law is less serious than the harm the defendant seeks to avoid

Duress. In order for duress to excuse the commission of a crime it must have been sufficiently compelling. For example, robbing a bank because someone threatened that if you did not your children would be killed is sufficiently compelling. The defendant must have been, “[c]oerced to do so by the use of force or threatened use of unlawful physical force upon the actor or third person, which force or threatened force was of such nature or degree to overcome earnest resistance.” ORS 161.270

Voluntary Intoxication. A defendant may offer evidence of voluntary intoxication by drugs or alcohol when relevant to negate an element of the crime charged. For example, if one is guilty of a crime only if they intended to commit it, evidence of intoxication may be offered to show that the person could not have formed the required intent. However, if the crime only has to be committed recklessly, a defendant may not use voluntary intoxication to disprove he had a reckless state of mind. Presumably, this is because getting intoxicated in the first place is considered to be reckless. While I cannot provide any statistics on the subject, my guess is that this defense is quite unpopular with juries and therefore rarely successful.

Insanity Defense. In Oregon, a person is found “guilty but insane” if they successfully assert this defense. The defendant must have lacked “substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the conduct to the requirements of the law.” ORS 161.295(1).

Unable to Aid or Assist. This is not actually a defense. This is where the defendant cannot properly understand or communicate with his lawyer such that the defendant cannot fairly be tried. This is actually a fairly common occurrence. Usually the defendant is put in the State Mental Hospital until he/she is able to aid and assist.

Self-defense. The State bears the burden of disproving this defense. For the defendant to succeed, evidence must show:

 · The defendant was not the aggressor

 · The defendant reasonably perceived an immediate threat of bodily harm

 · The defendant reasonably believed that defensive force was necessary

 · The amount of defensive force used was reasonable A person does not have duty to retreat before using deadly force in self-defense.

Defense of Others. This is treated much the same as self-defense in Oregon. Defense of Property. This defense is also similar to self-defense. A person may use deadly force against a trespasser only if they reasonably believe it is necessary to prevent the commission of arson or felony by force and violence by the trespasser.

Use of Physical Force in Resisting Arrest. A person may not use physical force to resist arrest by a person who reasonably appears to be a police officer, whether the arrest is lawful or unlawful. (Here is good example of situation where ignorance of law is no excuse. A reasonable person may think he can resist an officer that tries to arrest him for no reason. But, he would be wrong, and his misconception would not be an excuse or even admissible in evidence.)

Entrapment. A person is not guilty if induced to commit the crime by law enforcement. “Induced” means the “actor did not contemplate and would not have otherwise engaged in the proscribed conduct. Merely affording the opportunity to commit the offense does not constitute entrapment.” ORS 161.275.

This defense is often thought of in the context of prostitution cases when the police are using female officers as “decoys.” Johns arrested for prostitution are generally not successful with this defense if they are seen cruising the area and approach the decoy. But if a defendant shows that he was in area on legitimate business and the decoy approached him and initiated the offer of sex for money, the defendant may assert the defense of entrapment.

In another example, if an undercover officer were to approach a person on the street dealing drugs for Oxycontin, that is not entrapment. However, if a police officer got a list from a doctor of persons with Oxycontin prescriptions and called them and offered them $25 per pill, that would be entrapment.

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