Defending a case generally falls into one of these categories:

• A crime never occurred.
• A crime was committed, but you were not involved. Common defenses in this situation are:
  • Mistaken Identification
  • Alibi
  • Framed
• A crime occurred, but there is a legal defense/justification to your actions. Defenses that are used in this situation include:
  • Agency
  • Duress
  • Entrapment
  • Infancy
  • Emergency Measure
  • Self-Defense
  • Renunciation
• A crime happened, but the defendant is not responsible.
  • Mental Disease or Defect
  • Intoxication (Drugs/Alcohol)
• A crime happened, but not the crime that was charged.
  • Lesser Included Offenses
  • Extreme Emotional Disturbance

To defend your case, it is important to remember that you are presumed innocent of all charges.  The burden to prove your guilt is on the prosecution, who must establish that you committed every element of the crime charged beyond a reasonable doubt.  In other words, you do not have to prove your innocence or that you are not guilty.

Proof beyond a reasonable doubt means a jury is firmly convinced of the accused’s guilt and that there is no practical or realistic explanation for any element of the crime other than it was committed by the person charged with the crime. It is the highest form of proof in the law.

A mistaken identity defense is used when a witness incorrectly states that a person was involved in a crime, when they were not.  This defense is often utilized when there is eyewitness testimony and the defendant did not commit the crime.

The New York Court of Appeals, our highest court, in 2017, recognized the unique problems that exist with eyewitness identification between races. As such, any time identification is an issue in a criminal case and the witness and the person charged are different races, you have the right to request the jury be charged about the problems with such identifications.

A person charged with a crime can use an alibi defense if they can establish that they were someplace else when the crime was committed.

Typically, this defense is put forth by witnesses by the defense. However, when an alibi defense is used, the burden of proof remains with the prosecutor to establish all elements of a crime beyond a reasonable doubt. A jury is not allowed to convict solely because they disbelieve the alibi, they are still required to believe the People’s case beyond a reasonable doubt.

Yes.  Criminal defense lawyers will often defend a case on the basis that their client was framed or set up.  With this type of defense, a criminal defense lawyer will try to establish someone else committed a crime and that their client is wrongly accused.

An Agency defense is a rarely used defense in drug cases.  The agency defense protects an individual who is working or acting for a buyer of drugs only. An agent of the buyer involved in a drug transaction is purchasing or acquiring drugs for somebody else.  This defense cannot be used if you have any involvement with the sale of drugs.  To have a successful agency defense, you cannot have received any benefit (other than a token of appreciation) for your participation in the purchase.

Duress is an affirmative defense raised when you were engaged in illegal conduct because you were forced or coerced to do so by use/threatened use of unlawful physical force upon you (or a third party), which force or threatened force a person of reasonable firmness in your situation would have been unable to resist.

If a defendant utilizes an affirmative defense, then the defendant has the obligation and burden to prove the affirmative defense by a preponderance of the evidence.  If an affirmative defense is offered, the prosecution still has the burden to prove every element beyond a reasonable doubt.  In the context of a jury trial, the jury or judge (non-jury trial) must first determine if the People have proven their case beyond a reasonable doubt.  If they have not, then the case ends, and the jury or judge must issue a not guilty verdict.  If a jury believes that the prosecution proved their case beyond a reasonable doubt, then if a defendant has raised an affirmative defense, the jury must consider and determine if the defendant has proved the affirmative defense by a preponderance of the evidence.

A Preponderance of the evidence means more likely than not. In mathematical terms it is 51% or just over half.

An entrapment defense is used when you have engaged in prohibited conduct because you were induced or encouraged to do so by a public servant or a confidential informant working for the police who was seeking to obtain evidence against you for a criminal prosecution. To raise the defense your criminal defense attorney must show that the methods utilized by the police or the confidential informant caused you to do something you would not have otherwise done. For an entrapment defense to be successful, you need to establish that you were induced or encouraged to commit a crime that you were not predisposed to commit.

Renunciation of a crime occurs when you stop participating in the crime before it begins and/or attempt to stop other participants from committing a crime.  Typically, this defense is used in conspiracy charges. The renunciation must be a complete withdrawal from the crime.  Renunciation is an affirmative defense.

In general, under New York law you cannot be charged with a crime unless you are 18 years old.  However, there are many exceptions to this rule.  For very serious charges such as murder, robbery or sexually motivated offenses, someone can be charged between the ages of 13-15.  In addition, a 17-year-old can be charged with a felony or misdemeanor (so long as there is at least one felony charge), and Vehicle and Traffic Law misdemeanors.  For more information regarding age dependent charges see our web page regarding juvenile delinquency.

Conduct which would ordinarily be considered a crime is justified and not criminal if the conduct is necessary as an emergency measure to avoid an imminent and significant injury.  Essentially this defense is utilized when someone is protecting themselves or someone else from a violent act.   The person using this defense cannot have contributed to creating the situation to use this defense or have been the initial aggressor.  The prosecution has the burden of disproving this defense beyond a reasonable doubt.

Self-Defense by use of physical force is allowed when a person reasonably believes that the use of force is necessary to protect themselves or others from the imminent use of force by someone else. In order for self-defense to be successful, the defendant will need to establish that they believed the use of force was necessary to protect themselves or others from physical danger AND that a reasonable person in the defendants position would have acted in a similar way.  The rationale behind this defense is that someone does not have to wait until they are attacked or injured before they can fight back. You cannot be the initial person causing the violent act to claim self-defense.  A defendant does not need to prove that they were justified in using self-defense.  The prosecution is required to prove beyond a reasonable doubt that the defendant was not justified in using self-defense.

The initial aggressor is the person who first attacks or threatens to use physical force first.  The initial aggressor does not have to be the one who caused the first contact.

A person can use deadly physical force when they reasonably believe it necessary to defend themselves or others from the use or imminent use of deadly physical force on themselves or others.  Deadly physical force means physical force which can cause death or serious physical injury.  To use deadly physical force, a person must reasonably believe that someone was using or about to use deadly physical force against them or others, AND that the use of deadly physical force was necessary to defend them or others, AND a reasonable person in the defendants situation, knowing what the defendant knew, would have had the same belief that deadly physical force was necessary.  This defense is not available if the defendant was the initial aggressor.

Serious physical injury means impairment of a person’s physical condition which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

In New York, you have the obligation to retreat and not use deadly physical force if you can do so completely and safely.  However, there are exceptions to this rule including you do not need to retreat if you are in your own home and you were not the initial aggressor, are a police officer acting within the scope of your duties, or you believe that someone is committing or attempting to the crimes of kidnapping, forcible rape, forcible criminal sex act, robbery, burglary, or arson.

The insanity or Mental Disease or Defect defense is raised when a person charged with a crime lacked criminal responsibility at the time of the crime because they lacked substantial capacity to know or appreciate either:

• The nature or consequences of the conduct; or
• That the conduct was wrong.

Mental disease or defect is an affirmative defense and can be established by expert medical (psychiatric/psychological) testimony, prior mental health related hospitalizations, medical records, and/or the nature, circumstances, and facts of the crime.

This is different than being mentally fit to proceed in the case against you. This defense cares about your mental state at the time of the crime, not at the time of the charges, proceedings, or trial.

If you are found not guilty by reason of mental disease or defect, your case is not over.  Instead, a new set of proceedings will be held to determine your current mental health condition, whether you are a danger to yourself or the community, and whether you should be committed to a mental health facility.  If you are committed to a mental health facility, your mental health status will be addressed in regular intervals, but you could be held for longer than the maximum criminal sentence unless your mental health condition improves.

Intoxication is not a defense to a crime.  However, evidence of intoxication by drugs or alcohol can potentially eliminate an element of a charged crime.  In raising this issue, you must show that you could not form the mental state required to commit the crime.  To be successful, you need to establish the significant impact of the drugs or alcohol.  The level of intoxication is greater than simply being drunk or under the influence or drugs. In most cases, intoxication does not eliminate a criminal act, but may be used to reduce the potential criminal exposure by changing an intentional act to a reckless one.

Extreme Emotional Disturbance (EED) is a New York-specific defense in Murder cases only. To be clear if you are found to have committed a murder under an EED, you would be found not guilty of Murder, but guilty of Manslaughter.

EED is a very different defense than claiming insanity or mental disease or defect.  First, you must have suffered from such an extreme emotional disturbance, that you suffered a profound loss of self-control.  Whatever the emotion, whether its sadness, anger, fear, or any other, it must be very intense.  Second, there must be a reasonable explanation that you suffered this extreme emotion. The reasonableness is viewed from your own viewpoint and situation, not that of another person.  Finally, you must commit the murder while under the influence of that extreme emotion.

Often, this defense is compared with the example of walking in on your partner in bed with another person and acting immediately. In such a circumstance, even if a police officer were standing right next to you, you very well would have acted the same way.  Like mental disease or defect, while an expert witness is not mandatory it is often necessary to support this defense.

If you were in a minor car accident and were so angry that you went and purposefully killed the other driver, you may very well have suffered from an extreme emotion, but most jurors would be unlikely to say such extreme emotion was reasonable because of an accident.

If you planned some or all the murder it is less likely you acted under the influence of an extreme emotion.  Also, if there was a time frame when you “cooled off” it is possible that the emotion lessened or ended and you instead made the conscious, intentional choice to act as you did.