List of Defenses & Law

Criminal Defenses

Below you will find a list of common defenses used in Utah criminal defense cases.

Entrapment

To be successful in using the defense of entrapment, you must show that the law enforcement officer, or a person working with law enforcement, induced you to commit a crime.  You must also show that if they hadn’t induced you to commit a crime, you wouldn’t have committed it.  However, just because law enforcement provides you with the opportunity to commit a crime does necessarily mean their actions constitute entrapment.

Be aware that in some circumstances, your past crimes can be used against you if you’re claiming the defense of entrapment.  For example, if you are arrested for selling drugs and you’re claiming entrapment, remember that you have to show you would not have committed the crime unless induced—previous convictions can sometimes be used to show that in fact you would have committed the crime even if not induced because you’ve done it before.

If you do have prior convictions that may be used against you, make sure you hire an attorney that’s willing to file motions on your behalf and fight to keep that evidence out of the court room.  Click here to learn more about filling pre-trial motions.

Didn’t Know the Law (Not a valid Defense)

It is a common mistake for individuals to believe that not knowing the law is a defense for having committed a crime.  (E.g. I didn’t know what the speed limit was; I didn’t know that it was a crime to smoke marijuana in Utah, etc.).

This is not the case.  Not knowing that a law exists, or misinterpreting what a law means, is not a defense to a criminal charge.

Mistaken Age of Victim (Not a Valid Defense)

Several Utah crimes are based on the age of the victim (e.g. statutory rape), and some Utah crimes call for increased penalties based on the victim’s age.  It’s not a defense to the crimes listed below that the defendant believed the victim to be older than the victim actually was at the time the crime occurred.  Even if the victim lied about his/her age, or the defendant had no way of knowing the victim’s true age, such facts still do not present a valid defense.

Child kidnapping, rape of a child, sexual abuse of a child, unlawful sexual activity with a minor, sexual abuse of a minor, aggravated human trafficking, sexual solicitation, exploitation or patronizing a prostitute.

Justification

A defendant can claim the defense of justification in the following circumstances:

  • If the defendant’s actions were reasonable and in fulfillment of his duties as a government officer or employee.
  • If the defendant’s were parents, guardians, teachers, or other person acting as parents, of a minor, and defendant’s conduct was “reasonable discipline.  However, the justification defense is not allowed in this circumstance if serious bodily injury is inflicted.
  • If the defendant’s actions were justified by any laws of the state of Utah.
Self Defense & Defense of Others

You are justified in using force, or threatening to use force, against another when you reasonably believe doing so is necessary to defend yourself or another from imminent harm.  This includes using “deadly force” if you reasonably believe that deadly force is necessary to prevent death or serious bodily injury to yourself or a third person.

You are also justified in using force, including deadly force, to prevent the commission of a forcible felony.  A list of forcible felonies is provided in the Utah Code 76-2-402.

However, you are not justified in using force of any kind if:

  • You were the aggressor, or the one who first used force.
  • The person using force against you is lawfully entitled to do so (e.g. a police officer).
  • You were the one who initially provoked the use of force with the intent that once the other person used force against you, you would then have an excuse to inflict bodily harm upon him.
  • You are attempting to commit, are in the process of committing, or you are fleeing after you have committed or attempted to commit a felony.
  • You have agreed to engage in combat with the other person.

In Utah, you do not have a duty to retreat in order to avoid a “fight,” or to avoid having to use force to defend yourself, if you are in a place where you have lawfully entered and are lawfully entitled to be.

Defense of Home / Habitation

You are justified in using force against another when you reasonably believe doing so is necessary to prevent or terminate the other’s unlawful entry into or attack upon your home/habitation.

However, you can only use “deadly force” if:

  • The perpetrator’s entry into the home is made or attempted in a violent and tumultuous manner, or by stealth, and you reasonably believe the entry is attempted or made for the purpose of assaulting or committing acts of violence to a person inside the home, and you reasonably believe that such force is necessary to prevent the assault or acts of violence.
  • You reasonably believe that the perpetrator’s entry is made or attempted for the purpose of committing a felony in the home and that the force is necessary to prevent the commission of the felony.

It’s important to note that in Utah, a person who uses force or deadly force in defense of his home/habitation is presumed to have acted reasonably.  This essentially means that in the event you used force or deadly force to defend your home, police officers and prosecutors will generally assume that you didn’t do anything wrong unless there is evidence that leads them to think otherwise.

Defense of Personal Property

You are justified in using force (but not deadly force) against another if you reasonably believe that force is necessary to prevent or terminate another person’s criminal interference with your property.  However, the court will look into the “reasonableness” of your actions.  To determine the reasonableness of your actions, the court will look at the apparent or perceived damage to your property, if any damage to your property was previously done by the perpetrator, if the perpetrator had previously made threats of harm to you or your property, if the perpetrator had previously acted violent towards you.

You can only use this defense if:

  • The property at issue is lawfully in your possession, or in the possession of one of your immediate family members.
  • The property at issue is not yours, but you have a legal duty to protect it.
Alibi

The defense of alibi is the defendant asserting that he could not have been the person who committed the crime at issue because he was not at the scene of the crime.

If you are going to offer evidence of an alibi, you must inform the prosecutor at least 10 days before your trial.  In addition, you must provide the prosecutor with specific information as to where you were at the time of the crime, and the names and addresses of the witnesses who will establish your alibi.  The prosecutor must provide you with the witnesses he intends to use that contradict your alibi evidence at least 5 days before trial.

Insanity or Diminished Mental Capacity

The insanity defense in Utah is more limited than most every other state in the country.  Utah’s defense of insanity law is limited to negating what’s called the “mens rea” of a crime.  The mens rea is the mental state one needs to commit a crime.  Therefore, this defense is used to show that as a result of mental illness, the defendant lacked the mental state required as an element of the crime charged.

For example, the crime of murder requires that the defendant “intentionally” or “knowingly” cause the death of another human being.  “Intentional” and “knowing” are mental states—states of mind the defendant must be in to be convicted of murder.  The defense of insanity can be used to show that the defendant did not “intentionally” or “knowingly” cause the death of a human being.  For example, defendant, who is insane, uses his vehicle to intentionally run over what he believes is a tree.  In fact, the tree is a human being.  Defendant has not “intentionally” or “knowingly” caused the death of another, even though he did cause the death of another.  This is because he wasn’t intentionally or knowingly causing the death of a human being—he was, in his own delusion, intentionally or knowingly running over a tree.

Mental illness for purposes of this defense means a mental disease or defect that substantially impairs a person’s mental, emotional, or behavioral functioning.  A mental defect may be a congenital condition, the result of an injury, or a residual effect of physical and mental disease or retardation.  Mental illness does not mean a personality or character disorder or abnormality manifested only by repeated criminal conduct.

Double Jeopardy

The Double Jeopardy Clause prohibits a defendant from being retried (having another trial) for the same offense for which she/he was found not guilty.

Compulsion/Duress

If you commit a crime because you were coerced to do so with the threat of unlawful physical force against you or a third person, which force is sufficient that even a person of “reasonable firmness” would not have resisted, you are not guilty of the crime you committed.

However, the defense of compulsion is not available to a person who intentionally, knowingly, or recklessly places himself in a situation in which it is probable that he will be subject to this kind of coercion/duress.