Defense Strategies

Like everything else, there is more than one way to defend a criminal charge. Defense strategies fall into three basic categories. (1) The evidence does not amount to the crime (2) The government can not get its witnesses and evidence together for trial and (3) The formal legal defenses established by the law.

This includes unreliable witnesses who will not show to court and other stale physical evidence when a case is old or mishandled. It also includes a wide variety of Motions to Suppress evidence claiming illegal police and state procedure.

One distinction is the burden of proof. Some defenses must be proven by the defendant by a “preponderance” of evidence. Others must be dis-proven by the government “beyond a reasonable doubt.” Washington uses a “two-prong” test to determine who has the burden of proof. First they look to the criminal statute itself to see if the government has defined the crime by the absence of this “element.” The other is much more abstract and debated and looks to see if the “element” of the defense “negates” one or more of the elements of the crime.

Self Defense is such a profound right that the law actually reimburses the defendant financially if they prevail at trial. RCW 9A.16.110. Washington State remains a “Stand Your Ground” State. It is lawful for a person who is in a place where they have a right to be and who has reasonable ground to believe they are being attacked to stand their ground and defend against such an attack by the use of lawful force. The law does not impose a duty to retreat. See WA. Pattern Jury Instruction 16.08. Read more

This is the broadest and most common strategy. It includes (1) Strategies that destroy or “impeach” the state’s witnesses and physical evidence, (2) defense evidence and witnesses that create “reasonable doubt,” and (3) legal motions like a “Knapstad” which asset that even when the evidence is undisputed, it does not equal the crime charged.

Police and those “assisting” them can also use force in some situations. They must be “performing a legal duty” and the civilian must be acting “under their direction.” Civilians even acting alone can use force to detain a “felon” to deliver them to the police. See Washington Pattern Jury Instruction WPIC 17.01.

This has become a difficult and unpredictable area of law with the political rise of domestic violence and society’s growing criticism of physical discipline. Physical discipline is lawful when it is reasonable and moderate by a parent, teacher, guardian or authorized person for restraining or correcting the child. The jury can consider the age, size and condition of the child and location of the injury. WPIC 17.07.

This is not a formal “defense.” But helps determine whether or not the defendant formed the required state of mind or “mens rea.” This is also a very unpredictable area. As the crime becomes more serious, it usually requires a higher level specific criminal “intent.” That said, the more serious the crime, the less forgiving the jury, unless there are sympathetic or unusual facts to the case. RCW 9A.16.090.

This allows people in unique situations to use force to detain others. This includes detaining trespassers and other illegal entries. You must be lawfully at the property and your detention must be reasonable in scope and time. This includes homeowners, shopkeepers and others. RCW 9A16.020.

Duress is also a challenge to the defendant’s state of mind or “mens rea.” It applies when someone threatened or used force to make another commit the crime or else they or someone else would be killed or seriously hurt. It is not available for murder or manslaughter. RCW 9A.16.060.

This is a delicate, complicated but powerful area of law and includes: Police Officers acting in the official course of duty & someone acting in their aid. RCW 9A.16.040, Self Defense and Defense of Others, RCW 9A.16.050(1), Resisting a Felony Against Yourself or Your Home

The law allows jurors to consider a wide variety of factors that affect the “mens rea.” These include mental illness, disorders, and other unique circumstances to determine the appropriate criminal state of mind. This area has much wider acceptance than intoxication. See WPIC 18.20.

Insanity is a much higher hurdle than diminished capacity. One must show that as a result of a mental disease or defect, they were unable to perceive the “nature and quality of their acts” or were “unable to tell right from wrong.”

The law provides very specific defenses tailored to some crimes including Felony Murder, Kidnapping, Rape, Child Molestation, Rape of a Child, Communication with a Minor, Reckless Burning, Criminal Trespass, and others.