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CHAPTER 5: SUBSTANTIVE CRIMINAL LAW AND PROCEDURE - Table of Contents

5.1 - Sources of Criminal Law and Procedure5.2 - Criminal Law - Title 185.3 - Criminal Procedure - Statutes and Rules5.4 - Juvenile Proceedings5.5 - Traffic Offenses - Title 425.6 - Municipal Ordinance Violations5.7 - Penalties5.8 - Federal Criminal Law5.9 - Defenses in Criminal Cases

5.9 DEFENSES IN CRIMINAL CASES

Every person charged with a crime in the United States is presumed to be innocent of that charge. The presumption of innocence means that every person is innocent unless proven guilty. This necessarily means that the prosecution in a criminal case has the burden of proving the defendant guilty. Prosecutors must prove each element of a charge beyond a reasonable doubt.

Therefore, by simply pleading not guilty, a person charged with a crime is demanding that the prosecution meet this burden of proof. A criminal defendant need not offer any evidence or make any argument; the defense can simply be to make the prosecution try and prove the case beyond a reasonable doubt to the satisfaction of all the jurors.

A defendant may, however, choose to present evidence to the jury. The defendant may do this by cross-examining the witnesses that the prosecution presents, or by presenting his or her own witnesses, or by testifying. For example, a defendant in a speeding case might cross-examine the police officer who issued the ticket to see whether or not the officer had properly calibrated the radar gun, or the teller in a bank robber as to the certainty of her identification of the defendant as the robber. A defendant is always entitled to attack the sufficiency of the evidence offered by the prosecution.

Many times, the defense in a criminal case relates to the state of mind of the defendant, rather than to the acts committed by the defendant. For example the difference between second degree murder and manslaughter is the state of mind of the defendant. To be guilty of second degree murder, the defendant must have acted intentionally; to be guilty of manslaughter, the defendant need only have acted recklessly. A defendant charged with second degree murder might admit that he caused the murder, but argue that he did not do so intentionally, and that he is therefore guilty only of the less serious charge of manslaughter.

Additionally, however, a defendant may wish to present a specific defense. The Colorado Revised Statutes establish many specific defenses. Among these are alibi, choice of evils, consent, duress, insanity and impaired mental condition, intoxication, mistake of fact or law, and self-defense and defense of others. Some of these defenses are really just specific ways of attacking the sufficiency of the prosecutor's case. For example, the defense of alibi is a claim that the defendant was somewhere else at the time the crime was committed, and this is usually part and parcel of a claim that one or more witnesses have misidentified the defendant as the person who committed the offense.

Other defenses admit that certain acts were committed but seek to justify those acts. For example, a claim of self-defense admits that the defendant caused bodily injury to another but claims that the actions were justified by the principle that everyone is entitled to defend himself or herself from harm. Still other defenses admit that certain acts were committed but seek to excuse those acts. For example, the defense of insanity admits that the defendant committed the acts constituting the crime, but argues that the defendant was incapable of distinguishing right from wrong and should therefore be excused from punishment.

The defense of alibi is, as noted, a claim that the defendant was somewhere else when the crime allegedly occurred. The Colorado Rules of Criminal Procedure require a defendant who wishes to present an alibi defense to inform the prosecution of that fact and of the names and addresses of the witnesses who will be called in support of the defense. This provision ensures that the prosecution is not unfairly surprised by the presentation of this defense. After receiving the names of the witnesses, the prosecution must inform the defendant of any additional witnesses the prosecution intends to call to rebut the claim of alibi. See Colorado Rule of Criminal Procedure 16II(d).

The defense of choice of evils can be offered by a defendant who is faced with an emergency situation and has to choose between two courses of action, each of which will cause some harm. Conduct that is otherwise criminal will be excused of the defendant chooses a course of action that causes less harm than would have been caused if the defendant had strictly followed the law. For example, a person who sees an assault in progress is probably justified in gabbing a cell phone from a passer-by to call the police. It is wrong to grab the phone, but it would be far worse to allow the assault to continue. A defendant can use this defense to justify actions that would otherwise be illegal. This defense has certain limits. The defense is set out in C.R.S. 18-1-702.

The defense of consent is available in certain types of criminal cases. A person charged with sexual assault of an adult may present evidence and argument that the other party consented to the sexual contact.

The defense of duress is the claim that another person was using, or threatening to use, unlawful force against the defendant and that a reasonable person in the defendant's shoes would have been overcome by that force. A simple claim that someone else persuaded or coerced the defendant is not sufficient to support this defense. See C.R.S. 18-1-708.

Insanity and impaired mental condition are complicated defenses that are rarely used. In Colorado a person is insane if the person is suffering from a mental disease or defect that makes the person "incapable of distinguishing right from wrong." See C.R.S. 16-8-101. A defendant raising this defense admits committing the acts but claims that he or she was insane at the time of the commission of the acts. The defendant must present evidence of insanity. Once the defendant raises such evidence, the burden shifts to the prosecution to prove that the defendant is sane. If a jury finds that the defendant was insane, the defendant is committed to the Colorado Mental Health Institute in Pueblo until such time as the defendant is capable of being safely released back into society. The definitions and procedures for determining sanity and release are set out in Article 8 of Title 16 of the Colorado Revised Statutes.

The defense of impaired mental condition is related to the defense of insanity and is even more difficult to understand and rarely used. Impaired mental condition is defined in Colorado as a disease or defect of mind that is grossly abnormal and prevents a person from forming the culpable mental state that is an element of the offense charged. See C.R.S. 18-6-102(2.7). As with insanity, a defendant must present evidence of an impaired mental condition, once the defendant raises such evidence, the burden shifts to the prosecution to prove that the defendant is sane, and a jury decides whether the claim has been proven. A person found not guilty by reason of impaired mental condition is committed to the state hospital in the same fashion as one found not guilty by reason of insanity.

Intoxication that is so severe that it prevents a person from forming the required culpable mental state may be a defense to certain kinds of charges. The use of this defense is strictly limited because of the general belief that a person who chooses to become intoxicated should remain responsible for his or her actions. Some crimes specifically provide that intoxication is not a defense. The law often distinguishes between voluntary and involuntary intoxication.

The defenses of mistake of fact and mistake of law are strictly limited by statute. See C.R.S. 18-1-504. A mistake of fact is not a defense unless the statute specifically provides that the defense is available, or the mistake supports some other specific defense such as choice of evils, or the mistake negatives the existence of the required culpable mental state. A mistake of law is not a defense unless there is a specific statute, rule, regulation or official interpretation of the same that permits the conduct.

Self-defense, which generally includes the defense of others, is based on the basic principle that each of us has the right to live and that we are entitled to defend ourselves if out life or health, or the life or health of others, is illegally threatened. The various forms of this defense are set out in C.R.S. 18-1-703 and the six following statutes. Generally, the use of physical force against another person is justified in order to defend against the imminent use of unlawful physical force against that person or another. The amount of force used to repel the unlawful force must be reasonable. Deadly force may not be used unless there is a danger of death or serious bodily injury. The statutes provide for special rules depending on the relationship of the parties (e.g., a parent disciplining a child) or other facts (e.g., a person defending his or her own home).

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