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Criminal Justice Strategies Related to a Defense

How does the concept of an action being defensible apply to procedures and strategies that you may use—or be required to use— as a police officer, a defense attorney, and a prosecutor when preparing for a case where the defendant plans to state that they did commit the crime, but that they are not guilty because the action was defensible?

Actions that are defensible may come in the form of either a “exempting circumstance” or a “justifying circumstance”. When either of these circumstances are present in a criminal action, the offender even if he admits to the commission of the crime may be free from criminal culpability and liability. An example of an exempting circumstance is an accident which is defined to be an event that takes place without one’s foresight or expectation and beyond the control of men. On the other hand, an example of a justifying circumstance is self-defense whereby a person who has committed an act which caused an injury or killing which would have been considered a crime shall not be so given the fact that it is done in self-defense. These brief discussions illustrate an action that is defensible under law.

As a police officer or a prosecutor, it is your interest to have the criminal prosecuted and be given the verdict of guilty. As such, in pursuance to this interest, it is your goal to prove to the court that the crime committed is not defensible under the facts. In order to do this, one must be aware that each “defensible act” whether it be in the form of a justifying circumstance or exempting circumstance has their own elements to be considered a valid defense in court. For example, for the defense of accident, it is required under jurisprudence that the act must be that which is totally outside the control of the accused. This means that the act was done without voluntariness and outside the reasonable control of the person who allegedly committed the crime. In order to rebut this element, as a police officer or a prosecutor, your goal is to prove that the defendant had a reasonable control under the circumstances in the case. The best example is in a case of murder where the defense of accident is used alleging that the gun fired in accident. In order to take down this defense, it is a legal strategy for the police and prosecutor to argue that the defendant had the chance to avoid the accident from occurring by exercising extraordinary diligence such that his failure to exercise the same will not allow him to invoke the defense of accident. In preparing a case therefore, it is the responsibility of the police or the prosecutor to gather as much evidence proving that the same was exercised without due diligence or present eyewitness testimonies which can prove the fact that the defendant did was negligent in his conduct which led the happening of the accident.

On the other hand, when it comes to defense lawyers, the goal is therefore to bolster your case and supporting the elements of each of the legal defenses available to your client. It should be noted that the criminal system has a presumption of innocence such that if the prosecutor or the police fails to debunk the basis of the legal defense of exempting circumstance or justifying circumstance by any rebutting evidence, then the accused shall be acquitted and the defensible action shall stand in court. As such, the primary legal strategy of defense counsels in these cases shall therefore gather as much evidence proving the element of “accident” or “self-defense” as the case may be. This may be done by not only presenting before the court the testimonies of the defendant as these can sometimes be considered as merely “alibis” or “self-serving statements” before the court and thus present other corroborating and/or circumstantial evidence which seeks to prove that the crime alleged to have been committed was in fact done in accident. Again, the primary goal is to determine the legal elements of the particular “defensible action” plead before the court by your client and support this defense with factual, object, and testimonial evidence. The assertion of a defensible action in essence therefore holds the defense counsel in a position to actively defend his client and assume that the actions which constitute the crime are true. This is a distinct position to be in as in most criminal charges, a plea of not guilty is usually presented which only requires the defense lawyer to present evidence tending to prove that the crime was not committed by the client, that the client is not the suspected criminal or the one who committed the act amounting to a crime, or that the client is absolutely innocent of the offense. In cases when a defensible action is admitted, there is more burden for the defense counsel to prove that the actions, based on law and jurisprudence, are either exempted or justified from criminal liability.

How do one’s actions as a police officer, a defense attorney, and a prosecutor change based on the type of defense the defendant uses?

As a police officer, the knowledge of these types of defense actually affects how they treat encounters with suspects or individuals accused of crimes such that they are more careful in identifying instances when defensible actions are present. For example, with respect to police officers, the defense of “presumption of regularity” and “Call of legal duty” are defensible actions. As such, if a police officer during a police operation kills or injures a person in the course of the operation, he can forward the defense of “legal duty to act” which shall exculpate him from criminal liability. Furthermore, with respect to cases when the police officer is investigating a case where the defendant in the criminal action forwarded a defensible act whether it be exempting or justifying, then the goal in the investigation shifts from finding evidence in proving the elements of the crime (which is the case in events when the defendant denies the crime and pleads guilty) into finding evidence that proves that the elements of defensible action is not present in the criminal case based on the facts and circumstances. As such, as a police officer you should be more careful in the kind of witnesses you present in court, choose on the evidence which is to presented, and ensure that the police reports presented before the court are aimed towards the fact that the crime is not justified or exempted and not towards the fact that the defendant actually committed the crime. In essence therefore the burden of proof shifts from one that is purely accusatory to that which is inquisitorial.

With respect to prosecutors, the actions of a prosecutor actually greatly change when a defensible act is pleaded in court. It should be noted that when the criminal defendant admits that the crime was committed, the burden of proof shifts to the defense to show that all the elements as laid down in the law and jurisprudence is present in order to justify or exempt the crime. The goal therefore of the prosecutor is to prove that it is neither justified nor it cannot be exempted. This can be done by assessing and examining carefully the statements and claims made by the defendant and ensuring that all the inconsistencies in his testimonies are exposed. This is important to determine whether or not the alleged exempting circumstance of accident or the justifying circumstance of self-defense was in fact present in the case. It should be noted that prosecutors are aware that there are instances in litigation where a defendant would rather admit to the crime and present a seemingly convincing justifying circumstance even when in truth and in fact it wasn’t really the case, that the commission of the crime wasn’t justified nor exempting. The prosecutor therefore shifts his actions into investigating these claims and to ensure that criminals are dealt with by the law and no spurious or false claims of defensible action results to an acquittal of an accused.

Lastly, as to the defense lawyers, their actions should change from merely presenting exculpating evidence and debunking the accusations of the prosecution and the police to presenting affirmative evidence that the actions of their client does in fact constitute a defensible action. In essence therefore, the burden of proof of the defense shifts as they are now the parties who is required to present proof before the court that the actions of the defendant were in fact defensible. Take note that in court trials, the fact that the defendant claims that his or her actions are defensible does not automatically merit innocence. The fact that the action is in fact exempting or justifying is a fact in issue before these types of criminal cases. As such, the defense lawyers are therefore obligated to produce factual evidence in support of the claim of his client. Therefore, to put it simply, the defense takes the role of the prosecutor as he is the one that needs to convince the court and present evidence beyond reasonable doubt that his client’s acts is defensible.


Reply Back to this student #1……Jazmin Gauna

I enjoyed reading your thoughts on this discussion. I think police officers and prosecutors seek to protect the innocent and convict the guilty. Trust and accountability between law enforcement and the communities. How can officers and prosecutors demonstrate to the community that they are making decisions fairly and impartially? Do you think that questions that prosecutors pose can change the criminal defense strategy? Again, enjoyed reading your thoughts on this topic.



Student #2 Catherine Lemay

It’s the police officer’s job at the scene to weigh out all the evidence at the time and decides whether to make an arrest or not. If there is an arrest, it’s the job as the defense attorney to defend the defendant as self-defense if their client states that’s what really happened. And it’s the job as the prosecutor to state otherwise so you can be charged and sentenced. If found not guilty it’s the prosecutor’s job to drop all charges on grounds of self-defense. If it’s a crime, it’s a crime. There are several defenses that you can use, it’s not just about being guilty or not guilty. From insanity to self-defense there is always some kind of defense. It will usually always be the decision of the prosecutor to put on defense whether or not it favors the defendant. They bring the charges against you, file those charges against you in the court, and is a representative of the state court. It’s always the defense attorneys’ job to defend you on all charges guilty or not and reach a resolution to the case. For the police, they can only make fast decisions so it’s their job to make an arrest or not and present that evidence to the state prosecutor.

STUDENT #3 Brody Hicks

There are several types of defenses in criminal proceedings. Mistakes, duress, insanity, and entrapment are all examples of where people used these defenses to show the crime they committed was for a valid reason (Reid 2016). Police Officers, and prosecuting attorneys can prepare for cases where a person admits to committing a crime by including all the facts of the incident. Gathering all the details of the case will give a jury a better explanation of whether someone’s defense is permissible or not.

For example, if a man shoots and kills an intruder running away from the house, it might be hard to prove self-defense since the intruder took off running upon noticing the house was occupied. Simply gathering all the facts and obtaining detailed statements can help prove a self-defense claim or dismiss it.

Police Officers investigating a crime might begin to realize a self-defense claim, and it might impact the outcome of the case. At the end of the day, the Police make the arrest based on probable cause. This might change when the prosecution takes a look at the case. I have had several occasions where people will claim self-defense even when they have no proof of the incident. The central components of self-defense are reasonable belief, proportionality, aggressor, mistakes, and imperfect self- defense (Lippman 2018). Each of these are valid reasons for self-defense and must be proven individually in court.

For example, a car thief might say they had permission from the registered owner of the vehicle to use it. However, you can disprove self-defense claims like this by understanding everything that happened including how long the car thief had the vehicle, and how they obtained the vehicle.


Lippman, M. (2018). Contemporary criminal law: Concepts, cases, and controversies (5th ed.). Thousand Oaks, CA: Sage Publications.

Reid, S. T. (2016). Criminal law: The essentials (3rd ed.). New York, NY: Oxford University Press

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