Possible Criminal Defenses

Not all defenses to crimes in Michigan are discussed in this blog.  Some of these defenses do not apply to certain offenses, or may not be allowed by a trial Court based upon case law and judicial interpretation.  You should always seek the advice of an experienced attorney such as Attorney Daniel Hilf  as to which, if any of these defenses, are applicable to your situation.  The defenses are listed in alphabetical order.

Abandonment and Renunciation – These are affirmative defenses.  Voluntary abandonment is when the Defendant repents or has a genuine change of heart.  Abandonment is not voluntary when the Defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, circumstances which increase the probability of detention or apprehension, or when the Defendant decides to postpone the criminal conduct to another time or with a different victim.  Abandonment that is not voluntary is not a defense to the crime.  Voluntary abandonment requires the Defendant to show by a preponderance of the evidence that he or she gave up the idea of committing the crime.  It must be a choice of free will, and the abandonment of the crime must be complete.  Abandonment can occur at any time before the crime is actually completed or before it becomes impossible to avoid completing it (for example, you cannot argue abandonment of a murder after the victim has already been shot).  Renunciation, pursuant to MCL 750.157b(4), states that it is an affirmative defense to a prosecution that under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose, the actor notified the person solicited of his or her renunciation and either gave timely warning and cooperation to law enforcement authorities or otherwise made a substantial effort to prevent the performance of the criminal conduct commanded or solicited, provided that the conduct does not occur.  The Defendant has the burden of proving this defense by a preponderance of the evidence.  If the allegation is solicitation of a murder and the Defendant merely refuses to pay the hit man   (expecting that the hit man would not go forward with the crime) does not meet the requirements of renunciation without contacting law enforcement or taking additional steps to prevent the crime.

Accident means that the Defendant did not intend to commit a specific crime, and that something occurred through a mishap or unexpectedly.  For example, a Defendant could argue that an unintentional penetration occurred under what was normally a lawful activity such as changing a baby’s diaper, bathing a child, or a doctor performing a medical procedure.  In Criminal Sexual Conduct cases the prosecution must prove beyond a reasonable doubt that the penetration was for a sexual purpose.

Alibi means that the Defendant was somewhere else when the crime occurred.  In Michigan, MCL 768.20 requires that the Defendant give notice of the intent to use an alibi defense (within 15 days of arraignment and at least 10 days before trial), and to provide the names of all potential alibi witnesses.  The Defense is also required to include specific information as to the place at which he or she claims to have been at the time of the alleged offense.  MCL 768.20 also requires the prosecution to provide the names of all potential rebuttal witnesses.  The Defense must show at least some evidence to support the alibi defense, even if the evidence is the Defendant’s own uncorroborated testimony.  Once the defense is established, the Prosecution must prove beyond a reasonable doubt that the Defendant was present when the alleged crime was committed.  The trial Court may deny a request for an Alibi jury instruction if the Prosecution’s theory is that the Defendant aided and abetted the crime from a different location.

Claim of Right occurs when a Defendant has a good faith belief to be the owner of property or entitled to the possession of property, it negates the intent element required of certain offenses.

Collateral Estoppel bars the relitigation of issues previously decided when such issues are raised in a subsequent suit between the parties based upon a different cause of action.

Confabulation is a defense asserted in cases where witnesses have been hypnotized either during or after an alleged crime and who are later called to testify about such events.  This defense attacks the credibility of the witness and the weight of the offered testimony.

Consent is an affirmative defense that the alleged victim agreed to the alleged conduct that occurred.  In some cases the defense is not allowed by law because of the alleged victim’s inability to consent (for example, Criminal Sexual Conduct cases where the alleged victim is less than 16 years old, mentally incapable, etc.).

Constitutional Right Violation allows the Court to dismiss a case outright, or suppress evidence that can be considered, based upon a violation of a Defendant’s rights under the Michigan and United States Constitution.  Areas litigated often include illegal search and seizure, violation of right to counsel, and violation of 5th Amendment privilege.

Credibility of the witnesses is always an issue at trial.  The Prosecution has the sole burden of proving his or her case beyond a reasonable doubt with competent evidence.  The presiding Judge or jury is free to accept all, some, or none of a witnesses testimony at trial in determining the facts of the case.

Duress is an affirmative defense in which the Defendant is excused from criminal responsibility for an otherwise criminal act because the Defendant was compelled to commit the criminal act by another person.  The defense is applicable only in situations where the crime committed avoids a greater harm.  (For example, duress could be a defense to an armed robbery, but not to a murder).  In duress cases, the threatened conduct must be sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm and the Defendant cannot escape the situation.  Once the Defendant raises some evidence of duress, the Prosecution has the burden to disprove duress beyond a reasonable doubt.

Entrapment is a defense that can be asserted when the conduct of the police or government was so reprehensible under the circumstances that a conviction should not stand as a matter of public policy.  Entrapment can also occur when the police or government engage in impermissible conduct which would induce a person similarly situated to the Defendant though otherwise law abiding, to commit the crime in question.

Impossibility.  Not applicable when it is the Defendant’s factual mistake that makes it impossible to complete his or her illegal goal.  For example, a Defendant can be prosecuted for Child Sexually Abusive Activity when he is chatting online with an undercover police officer and makes arrangements to meet a factitious minor girl for a sexual purpose.

Insanity is an affirmative defense to a prosecution for a crime when the Defendant was legally insane at the time of the commission of the criminal act.  An individual is legally insane if, as the result of mental illness as defined in MCL 330.1400a or as a result of being mentally retarded as defined in MCL 330.1500, that person lakes substantial capacity either to appreciate the nature and quality of the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law.  Hence, the standard is significantly higher than being mentally ill or mentally retarded when committing a crime.  Insanity caused by intentionally ingesting controlled substances or alcohol is not an allowable defense (in Michigan this is called diminished capacity, which cannot be argued at trial; Involuntary intoxication may be argued as rendering the Defendant temporarily insane).  The Defendant has the burden to prove insanity by a preponderance of the evidence, and must file and serve on the Prosecutor and the Court written notice of intent to claim an insanity defense no less than 30 days before trial, or at such other time as the court directs.  Upon receipt of the notice, the Court must order the Defendant to be evaluated at the Center for Forensic Psychiatry or other qualified personnel.  The Defendant is entitled to one independent examination if he or she makes a timely request.  A Defendant who is determined to be legally insane is committed by the Court to the Forensic Center, and decisions with regard to the placement and the release of the Defendant becomes a decision for the Probate Court.

Lack of Jurisdiction can be asserted if the allegation itself occurred outside of the jurisdiction of the Court, or the State of Michigan.  There is an applicable 1 mile rule that allows prosecutions for alleged crimes that occur within 1 mile of the jurisdiction of the Court.

Lack of Probable Cause at a preliminary examination in Michigan is a basis for a District Court Judge to deny a motion by the Prosecution to “bind over” or to transfer a case from the District Court to the Circuit Court.

Mere Presence, even with the knowledge that a crime is about to be committed or is being committed, is not enough to make a person an aider and abettor.  At trial there must be proof beyond a reasonable doubt that the Defendant participated in the crime actively, by being a look out, by being the driver knowing that the crime would likely occur, or otherwise.

Misidentification of the Defendant by a witness can lead to the dismissal of a criminal case, depending upon the circumstances.

Mistake of Fact, if reasonable and in good faith, may negate the state of mind necessary to commit a crime and help a Defendant avoid criminal liability.  In Criminal Sexual Conduct cases, the mistake of fact defense may apply in cases where the question is whether or not the alleged victim could consent due to being mentally ill, mentally disabled, mentally retarded, mentally incapable, mentally incapacitated, or physically helpless.  The Defendant’s belief in the ability of the alleged victim to consent must be reasonable.  In Criminal Sexual Conduct cases involving an alleged victim who looks older than his or her age, or who misrepresents his or her age, the defense of mistake of fact is not applicable.

Momentary Innocent Possession occurs when a person comes into brief possession of property that is contraband with the intent to turn it over to law enforcement or in some case the owner.  For example, if an individual found credit cards on the ground (that turned out to be stolen) and had the intent to turn those credit cards over to the true owner or a store manager, he or she should not be prosecuted for unlawful possession of a Financial Transaction Device.  However, if an individual found what he or she knew to be cocaine and intended to return the cocaine to the owner, the individual could possibly be prosecuted for either Possession of Cocaine or Possession with Intent to Deliver Cocaine.

Necessity is a defense where the presence of natural physical forces compels the Defendant to commit a particular crime.  For example, if a Defendant breaks into a home in order to climb onto the roof because he or she is trying to escape the waters from a tsunami, necessity is a viable defense.

Reasonable Doubt is the Prosecution’s sole burden of proof at trial.  Any one reasonable doubt means that he or she should be acquitted by either the presiding Judge or the jury sitting in judgment of the case.

Recantation.  When the complainant recants, it means that he or she either lied or were mistaken at the time they reported an alleged crime.  This rarely leads to a dismissal because the position of the prosecution will be that it is up to the Judge or jury to decide if the complainant was truthful during the original statement or truthful at the time of recantation.  If the complainant made false statements, it is the basis for the complainant to assert a 5th Amendment privilege to not testify at trial.  This can be overcome if the prosecution offers the complainant immunity.

Res Judicata is similar to collateral estoppel.  This doctrine prevents the relitigation of the same issue by the parties sharing the same interest in the issue.

Self Defense or Defense of Others involves an individual’s honest and reasonable belief that he, she, or another person was in danger of imminent death or serious bodily harm and used only the amount of force necessary to protect against that danger.  Under some circumstances when self defense is asserted there is a duty to retreat when it is safe to do so.

Speedy Trial Violation is both a statutory and a Constitutional defense in Michigan that applies when there is impermissible delay with a case.  The statutory rules are different for state prisoners and county jail prisoners, and preclude a dismissal of the case for a county jail prisoner.  If the delay is attributable to the Defendant, the period of time can be tolled against the Defendant.  For Constitutional speedy trial issues, issues that are always considered by the Court is the length of the delay, the reason for the delay, and whether or not the Defendant suffered any form of prejudice due to the delay.

Statute of Limitations is governed by MCL 767.24, unless the specific crime contains its own limitations period.  The statute of limitations is a nonjurisdictional, waivable affirmative defense.  There are several crimes that have no limitations periods, such as: murder, conspiracy to commit murder, solicitation to commit murder, 1st Degree Criminal Sexual Conduct, crimes involving explosives and bombs, and crimes concerning terrorism.  There are several crimes that come with a 10 year limitation period or by the alleged victim’s 21st birthday – whichever is later: Child Sexually Abusive Activity or Material, 2nd Degree Criminal Sexual Conduct, 3rd Degree Criminal Sexual Conduct, 4th Degree Criminal Sexual Conduct, and Assault with Intent to Commit Criminal Sexual Conduct.  There is no limitations period for a violation of any of the above referenced offenses if the offender is unidentified and DNA evidence is developed which ultimately identifies a Defendant.  If an individual is identified, the Prosecution has 10 years after the Defendant is identified or by the alleged victim’s 21st birthday, whichever is later.  According to MCL 767.24(3) there is a 10 year Statute of Limitations period for: kidnapping, extortion, Assault with Intent to Commit Murder, Attempted Murder, Manslaughter, Conspiracy to Commit Murder, 1st Degree Home Invasion.  Pursuant to MCL 767.24(6) there is a 6 year Statute of Limitations for all other offenses.  There are some situations which may toll the Statute of Limitations period, such as if the Defendant leaves the state of Michigan, which in effect extends the period for which a charge can be brought.  You should always seek the advice of a competent criminal defense attorney if the Statute of Limitations may apply to a prior situation which you may have been involved with.  It is important to note that a plea of guilty or no contest waives the Defendant’s ability to assert the Statute of Limitations.

Unconstitutional laws.  Laws can be challenged at Court if they violate the Constitution, are arbitrary, unreasonable, misleading, vague, or otherwise does not provide adequate notice to an individual as to the type of conduct forbidden.

Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able – just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only experienced professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.


Contact Information