Common Defenses to Criminal Conduct

Cite this article as: Jason Mance Gordon, "Common Defenses to Criminal Conduct," in The Business Professor, updated January 5, 2015, last accessed April 7, 2020,
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Defenses to Criminal Charges
This video identifies and explains common defenses to criminal charges.

Next Article: Types of Punishment for Criminal Activity


What defenses exist to criminal conduct?

Common defenses to criminal conduct include:

Negating Mental Capacity – Certain conditions of the defendant may negate the mental capacity to commit a crime.

  • Examples: Defenses commonly negating capacity include mental incompetence, insanity, involuntary intoxication, and infancy.

Negating Intent – Certain conditions may negate the requisite intent (men rea) required by a particular crime.

  • Example: A mistake of fact or voluntary intoxication may negate the mental intent required to find guilt for a particular crime.

Other General Defenses – These defenses constitute defenses to certain criminal charges. Common examples include:

Duress – This means applying undue pressure (often pursuant to a position of power or authority over an individual) to coerce activity deemed to be criminal conduct.

  • Example: Holding a gun to someone to make them steal would be an example of duress.

Necessity – Necessity is when an individual had no choice but to break the law in order to avoid significant harm. There must not be another reasonable manner of avoiding the harm and the harm avoided must be greater than the harm caused by breaking the law.

  • Example: Hank sees an individual planting a bomb in a public park. The individual runs off. Hank pulls out his concealed weapon and fires it into the air multiple times. This act causes all the bystanders to flee running. His act of firing the weapon was criminal, but it was done out of necessity.

Entrapment – This involves the wrongful solicitation and inducement to commit criminal activity by a government official (particularly the police).

  • Example: I am a police officer. I tell Adam that he can make some extra money by helping me transport drugs from Florida to New York. I provide Adam with a vehicle loaded with illegal drugs. I then arrest Adam for carrying out the plan. I have entrapped him.

Justifiable Use of Force – Individuals may generally use a certain level of force to protect themselves and their property. The use of force is generally limited to the ability to respond with a reasonable amount of force given the situation.

  • Example: Thomas is walking down the street when he is attacked by two men. Fearing for his physical safety, Thomas uses a can of mace to spray and disorient his attackers. Thomas has not battered his assailants, as his use of force was justified in defense of his safety.

The availability or applicability of any defense depends upon the type and nature of the criminal charges.

Discussion: What is your impression of defenses to criminal activity? Do you believe most defenses posed in criminal actions are valid or are they overused hindrances to the execution of justice? Can you think of any famous criminal cases where one of the defenses earned an acquittal for a defendant?

Discussion Input

  • Some would argue that conduct harming another person or property of another is indefensible. That is, if you do the conduct, you should be held to account. This is a common belief in many countries outside of the United States. Others would argue that criminal punishment is only warranted when there is some level of intent or voluntary activity involved. If there is any factor or condition interrupting this intent, then the criminal conduct should not be punishable.

Practice Question: Geoffrey is walking home from a party and is stopped by the police. The police are concerned that Geoffrey is intoxicated and administer a field sobriety test, which Geoffrey fails. The police charge Geoffrey for public intoxication. Geoffrey contends that he did not drink or take drugs that night. A blood test shows that Geoffrey has alcohol in his system. Unbeknownst to Geoffrey, someone at the party had spiked the punch bowl from which Geoffrey was drinking. What defenses might Geoffrey employ at trial?

Proposed Answer

  • The charge of public intoxication is a general intent crime. It does, however, require that the defendant have the general intent to intoxicate himself or consumer alcohol. In this scenario, Geoffrey consumed alcohol without his knowledge or consent. Demonstrating this could serve as a defense to the general level of intent necessary to demonstrate guilt of the charged offense.

Academic Research

Chin, Gabriel Jackson and Fontaine, Reid Griffith and Klingerman, Nicholas and Gilkey, Melody, The Mistake of Law Defense and an Unconstitutional Provision of the Model Penal Code (December 6, 2014). 93 North Carolina Law Review 139 (2014); UC Davis Legal Studies Research Paper No. 412. Available at SSRN:

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