17 Best Criminal Defense Lawyer Strategies
Here our attorneys share the best criminal defense strategies and defense lawyer tactics we use vs prosecutors to fight criminal charges and win.
The best part?
These proven legal defenses and arguments are distilled from our former Prosecutor’s experience handling over 8,000 criminal cases and jury trials.
It is important to remember that defendants are innocent until prosecutors prove guilt beyond a reasonable doubt.
8 key factors drive what your best defense strategy is:
Defendant's explanation of what happened, why and credibility.
Witness testimony and credibility.
Provable facts and physical evidence.
Police reports, errors and credibility.
Expert, 3rd party reports and testimony.
Penal code charge and the required crime elements to prove.
Criminal prosecutor strategy & history.
Judicial precedent & the judge's history.
The job of a criminal defense lawyer is to select the best criminal defense attorney tactics after reviewing a case's facts and circumstances.
Each case is unique and the best criminal defense attorneys weigh all factors to develop a case theory and defense most likely to succeed.
If you’re facing prison or harsh penalties, it is key to consult a top criminal lawyer. No matter how smart you are, it is nearly impossible to competently defend yourself.
With that said, let’s dive in…
The 17 Best Legal Defenses to Criminal Charges
1. Mistaken identity
Incorrect witness identification is a major source for incorrect accusations. This can happen if a person’s description is similar to a criminal perpetrator or if a witness assumes someone committed a crime due to circumstances or they are trying to cover for a crime they committed.
Most offenses in California’s Penal Code include deliberate offenses in which the violator intentionally carried out the crime.
This is key:
If your criminal justice lawyer can show the act to be accidental, there is a substantial defense against the charge.
3. Duress or immediate danger
In the event that somebody carries out a crime simply because they believed they were in immediate risk of harm, their actions might not be considered a crime since they were made under duress.
4. Beyond a reasonable doubt
In 1970, the US Supreme Court ruled in the In Re Winship case that the US Constitution requires that the government must meet the strict "beyond reasonable doubt" legal standard when establishing guilt of criminal charges for both adults and juveniles alike.
Under US law, the more serious the consequences, the higher the standard of proof generally should be. Since criminal convictions involve potential loss of liberty in prison, the highest standard of proof applies.
The beyond reasonable doubt standard requires that the evidence be so convincing that no reasonable person would ever question the defendant’s guilt.
This standard requires:
The jury (in some cases, the judge) must have a moral certainty that the defendant is guilty and that the evidence offers no logical explanation or conclusion other than the defendant committed the crime.
This strict standard favors the defendant because:
Defense has to merely establish a reasonable doubt about any of the key elements required for the crime to succeed. Good criminal lawyers often impress upon juries that thinking the defendant committed the crime is not sufficient for a conviction.
They must have moral certainty after considering all the facts that there is no doubt remaining and only one logical conclusion is left: the defendant is guilty. Criminal jury instructions note that all 12 jurors must unanimously agree on the verdict to convict.
5. Defendant has an alibi
A defendant cannot be guilty of many offenses if their Santa Monica criminal attorney can show they were elsewhere when the crime occurred and therefore couldn't have committed the alleged crime.
Entrapment happens when a normally law-abiding citizen commits an offense because of intimidation, coercion, or law enforcement going too far to persuade someone to violate the law.
This occurs most often with:
Various types of undercover police operations. Entrapment is most often raised by a good lawyer as a defense in court for prostitution, child pornography and drug offenses.
7. Police misconduct
Unfortunately some law enforcement officials commit misconduct during their investigations. Police officers may wish to cover up a mistake they made during their initial investigation or they may just be convinced a suspect is guilty and engage in misconduct in order to build a stronger case.
Police misconduct can take many forms, but the most common are:
Lying or embellishing facts in court room testimony or in their reports.
Improperly handling, planting or doctoring evidence.
Using unnecessary force like tasers or pepper spray on cooperative subjects.
Coercing witnesses and suspects.
If your Newport Beach criminal attorney can identify and prove police misconduct, that provides leverage for dismissing your case and potentially pursuing a civil rights claim seeking damages.
8. Compelled or false confessions
In many cases, police have been known to coerce false admissions from innocent suspects using different mental strategies and even physical threats, starvation, and sleep deprivation.
Juveniles are particularly vulnerable to coercion. If defense attorney trial tactics can show evidence of coercion, then a case can be made to have the admission tossed out and excluded from evidence.
9. Probable cause
In 1968, the US Supreme Court ruled in the Terry vs. Ohio case that it is reasonable for an officer to stop an individual absent probable cause to arrest, as long as he can point to "specific articulable facts" that justify “probable cause” for the stop, search and arrest of that person.
This is important:
If there is not probable cause, defense can file a motion to suppress any improperly obtained evidence. If key evidence is suppressed, this can cause a case to be dismissed.
10. Falsely accused
It is common that individuals are falsely accused of violations they did not commit. For example, child abuse, sex crime and domestic violence accusations can be made without any physical evidence.
A top criminal defence lawyer can work to obtain a retraction of the accusation or show evidence that the accusations were false or impugn the credibility of the accuser.
11. Mistake of fact
If an alleged crime was made under a reasonable and honest mistake of fact, then the person is not guilty of most criminal offenses.
Accidentally taking someone’s property believing it was yours.
In California the legal defence of “necessity” excuses criminal conduct when it is done only to avoid a greater harm. An accused can be acquitted of a charge if they believe that they or another person is in danger or about to be harmed and the only reasonable alternative is to do the criminal act. The necessity to commit the crime must be provable with evidence.
13. Self defense or defense of others
California recognizes the “castle doctrine” which applies to one’s home, place of business, or other real property. An individual injuring another or using deadly force has no duty to retreat. But castle doctine rights end when an individual is no longer on their real property.
Keep in mind:
In general, force used against an intruder must be reasonable and proportionate to the harm reasonably feared.
Therefore there is a valid defense if you believe that you or another person face imminent danger and you only use as much force as is reasonably necessary to alleviate that danger and escape is not a reasonable choice.
14. Involuntary intoxication
Most criminal statutes require “specific intent” to commit crimes. If a defendant was involuntarily intoxicated, that is generally a complete defense to almost any crime.
If someone slips a drug into a defendant’s drink causing them to become involuntarily intoxicated. Or if a doctor prescribes a drug without warning of the potential side effects. However, you can only claim involuntary intoxication if you did not voluntarily take any intoxicating drugs or alcohol.
15. Plea of insanity
In most instances, you cannot be found guilty of a crime if you were legally insane when you committed it because willful intent is a required criminal element.
California courts utilize a definition of legal insanity is known as the M'Naghten Rule (pronounced and sometimes spelled as McNaughton) named after Daniel M'Naghten, a Scottish woodturner who murdered an English official in 1843 while suffering from paranoid delusions.
The M'Naghten Rule requires that the accused:
Did not understand the nature of the criminal act, or
Did not understand that the act was morally wrong.
Kansas, Montana, Idaho and Utah do not allow the insanity defense. Other state jurisdictions each utilize one or more of the four following legal tests of insanity:
Model Penal Code Test.
Irresistible Impulse Test.
The insanity defense test utilized by each state jurisdiction is reviewed here.
16. Double jeopardy
The US Constitution protects citizens from being prosecuted for the same crime twice and facing multiple punishments for the same crime. A suspect cannot be tried twice in the same court for the same crimes.
So if a defendant is acquitted of a crime, prosecution cannot try for the same offense, even if new evidence comes to light.
17. Statute of limitations
State criminal statute of limitations laws forbid criminal prosecutors from charging someone with a crime that was committed more than a specified number of years ago.
The purpose of these laws is to ensure that convictions rely only upon evidence that has not deteriorated with time. After the time of the statute has run, the accused is essentially free.
Statutes of limitation generally require an accused person to be:
In the state where the crime was committed,
Gainfully employed, and
Visible and not in hiding or under an assumed identity.
Each state establishes its own criminal statute of limitations, usually with different limits for different kinds of crimes.
Under California penal code §799, the California criminal statute of limitations are generally as follows with some exceptions:
No statute of limitation: Murder, other offenses punishable by death or life imprisonment, embezzlement of public funds.
6 years: Felonies punishable by 8 or more years in prison.
3 years: Felonies punishable by imprisonment of less than 8 years, Misdemeanor violation committed on a minor under 14.
2 years: Misdemeanor sexual exploitation by physician or therapist.
1 year: Other misdemeanors.
Statutory periods generally do not begin until the offense is or should have been discovered. And the statutory period is typically extended for up to 3 years of the time the accused is not in the state.
Frequently asked questions
How to get a case dismissed before trial?
Depending on the facts of your case, it is possible to get a case dismissed before trial. Criminal charges are frequently dismissed by District Attorneys or the courts.
Skilled criminal attorneys must carefully scrutinize a case, police procedure and evidence to see if there are grounds to get a prosecutor to drop charges before the court date.
Some example legal grounds for dismissal:
Lack of probable cause for arrest.
Insufficient evidence proving defendant committed the alleged crime.
Improper DA criminal complaint or charging documents.
Tainting or loss of evidence needed to prove guilt.
Key witness unavailability or changing of their testimony needed to prove the defendant committed the crime.
In addition to legal grounds for dismissal, there are also practical reasons why a District Attorney may decide to drop charges.
Top criminal lawyers have good relations with the DAs and judges and know how to negotiate dismissal based on practical reasons such as:
Lack of resources: Prosecutors and courts are often overloaded and looking to allocate resources to higher priority cases. It helps if your case falls into the minor crime, low priority category.
First time offender: District Attorneys may be persuaded if this is your 1st offense and you’re accused of a minor crime.
Cooperating with prosecutors: If you are able help prosecutors with another case, they may be open to a deal to dismiss your charges in exchange for assistance.
Need a criminal defense attorney?
Get your charges dropped or reduced, and protect your freedom.
Call 844-325-1444 for a Free confidential consultation with our Former Prosecutors. We serve Southern California from our offices in Los Angeles & Orange County.
What are the 6 elements of a crime?
Common law breaks down the elements of crime that prosecutors must prove beyond a reasonable doubt. Almost all crimes have at least three elements:
1) A Criminal Act or "Actus Reus"
The definition of Actus Reus is a culpable act or the objective elements of the criminal act. These can be either acts or omissions to act that legislatures have chosen to punish.
Criminal acts are defined in criminal laws such as the California Penal Code.
2) Criminal Intent or "Mens Rea"
Also known as "culpable mind" or "Mens Rea." The mental element of intending to commit a crime or knowing that an action or lack of action would result in a crime being committed.
Usually a person who acts without mental fault will not be liable under criminal law. The exceptions to this rule are known as "strict liability crimes."
3) Concurrence of both the Criminal Act and Criminal Intent
Both the criminal act and criminal intent must be present together in order to be liable under criminal law.
If a crime requires a harm or bad result (not all do), prosecutors must also prove two more elements beyond a reasonable doubt:
4) Harm to Victim or Society
5) Causation of Harm by the Criminal Act
There are some crimes where prosecutors must also prove:
6) Attendant Circumstances
Attendant circumstances are additional facts that define the crime. These external circumstances could include the crime’s methodology, victim characteristics, location or setting, among others. For example, in a statutory rape case, the victim's age is an attendant circumstance.
What is a strict liability crime?
Strict liability crimes are when there is no state-of-mind element that must be proved. Most serious crimes require showing criminal intent. Otherwise every accidental death, including good faith medical procedures, could become grounds for criminal prosecution.
While strict liability is much more common in civil matters, there are some criminal acts that lawmakers have decided to punish no matter what the state of mind.
Examples of strict liability crimes:
Selling alcohol to a minor.
Some traffic offenses such as speeding (i.e. the broken speedometer defense).
There can be defenses to strict liability crimes, but this is a complex area of law requiring a careful legal analysis of possible defenses given the case scenario.
What are criminal defenses?
Under U.S. law, prosecutors must prove guilt beyond a reasonable doubt. Successful legal criminal defenses involve proving a reasonable doubt in court about any of the required elements of the crime as defined in the penal code.
What is a criminal defense lawyer?
A criminal defense lawyer specializes in defending individuals and companies that have been charged with a crime or are facing criminal investigation.
Criminal law is defined in local, state and federal legislation. Each state sets its own definitions and punishments for crimes and most crimes charged as state crimes.
Criminal defense lawyers provide counsel and representation to clients dealing with criminal investigations, accusations, arrest, criminal charges, sentencing, probation, appeals and post-trial issues.
How to hire the best criminal defense lawyer?
Selecting the best criminal defense attorney for you can be one of the most important decisions in your life. Criminal convictions cause permanent life altering consequences that affect your family, freedom and professional future.
Some key factors to consider when selecting the best criminal lawyer for you:
Knowledge and experience of court procedure and handling your type of case. Former prosecutors and public defense lawyers can have an advantage from the extensive training and volume of cases they handle as government lawyers as well as learning the inside operation of the legal system.
Experience and good relationships with prosecutors and judges to assist negotiating the best outcome in plea deals.
Clear communication and a good personality that works well with you.
Compassion and ability to assist with the emotional aspects of trials.
Intelligence, ability to evaluate all factors and develop a successful defense strategy.
Lawyer resources for investigations, experts and alternative sentencing options.
· · ·
Last updated 4.20.19
Chudnovsky Law legal services in other languages
Our lawyers provide service in Español, Français, Italian, Portuguese, Hebrew and Amharic. For more info visit:
This information does not constitute legal advice and is not a substitute for individual case consultation and research. No representations are made as to the accuracy of this information and appropriate legal counsel should be consulted before taking any actions. Contact us for a Free consultation regarding your specific case and facts and to see if Chudnovsky Law is the best defense attorney for you.
About the Author:
Chudnovsky Law is a premier criminal defense law firm based in southern California. Our senior criminal defense attorneys Tsion Chudnovsky, Robert K. Weinberg and Sherry Cross wrote this guide to share their expertise and experience from handling over 8,000 criminal cases and jury trials.