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Criminal Defenses | Defense Issues

Criminal Defenses | Defense Issues

We have two main types of criminal defenses.  First, some defenses undermine the prosecutor’s proof of their basic claims.  And second, others are affirmative defenses.

What are criminal defenses in Minnesota?

In addition, when defense lawyers become law enforcers, suppressing illegal, unreliable evidence; that is another type.

The charge is based on hearsay

In any Minnesota criminal case, a prosecuting attorney prepares a charging document (a Complaint or Indictment). In it, the prosecutor accuses a person. 

And the charge always contains potential criminal defenses.

The prosecutor must base the charge on second-hand information, reported to them.  So prosecutors rely upon information that police officers provide. But police officers mostly get their information from what other people say. 

Even physical evidence requires foundation to have meaning. 

And police officers rarely have personal knowledge of what they are reporting.  They are not eyewitnesses. A type of case where this is common is domestic assault claims.

So, with many layers of second-hand information, something could go wrong.

For example, someone falsely accuses an innocent person.  And a prosecutor charges the person based on second hand information.

What are defenses in Minnesota?
What are defenses in Minnesota?

So, the unreliability of the hearsay basis of criminal charges creates criminal defenses.

Yes. We have the presumption of innocence for a reason.  So the accused is innocent.  And she is not-guilty, unless the prosecutor can somehow persuade a jury that no possible inference consistent with innocence exists.

The burden of proof is the highest — beyond any reasonable doubt

And that is the core legal defense in every criminal case.

The prosecutor has to try to overcome all reasonable doubt about each and every element of the crimes charged. 

So criminal defenses include showing the prosecutor’s failure to prove one or more element.

The charge contains criminal defenses

A written statute defines every crime.  And the statute defines the elements of a crime. 

But all crimes generally include at least the basic elements of identity, prohibited act, and criminal intent.  So criminal defenses include showing the lack of evidence for one or more of the elements.

Identity element

Identity.  If someone did commit a crime, who did the prohibited act?

Prohibited Act element

Prohibited Act.  Did someone perform an act?  If so, does the law prohibit that act?

Criminal Intent element

A crime requires Criminal Intent.  And two types of criminal intent are specific and general.

Specific intent means the actor must have intended to cause the result of the prohibited act. And one example is murder with premeditation.

But general intent means the actor must have intended to perform the prohibited act, even if not the result of it. And an example is manslaughter.

There are varying levels of criminal intent required by criminal statutes.  So criminal defenses include the lack of criminal intent.  So for example, an accident is an unintentional act.

And where a criminal statute includes an element requiring “specific intent,” some defenses may only defeat that specific intent element (e.g., an intoxication defense). When that happens, often a lesser-included general intent crime amy still be an issue. and it could result in a conviction but of a lesser level of offense.

The intent element
The intent element

The criminal intent requirement

How low can criminal intent go?  Sometimes, a gross negligence level of intent is enough for criminal liability.  And Minnesota’s Criminal Vehicular Operation crime is an example.

But Simple Negligence alone cannot create criminal liability. A crime requires intent to do the act.

Sometimes a condition to an intent element of crime is knowledge, as in contraband possession-type crimes.  A person cannot be guilty of a possession crime if without knowledge of the contraband identity or location

But, knowledge alone does not prove dominion and control required for criminal possession.

The jury infers criminal intent under the objective, reasonable person standard, from the point of view of the defendant, at the time.

A deeper look at intent criminal defenses

We can look deeper into criminal-intent proof-requirements as this court did:

“Crimes used to be categorized as involving specific intent or general intent. In recent years, four categories of mens rea have been delineated—purpose, knowledge, recklessness, negligence. See United States v. Bailey, 444 U.S. 394, 404 (1980); Model Penal Code § 2.02 (1974). The two categories most difficult to distinguish, and the most germane to our discussion, are purpose and knowledge. A person acts with purpose when the person ‘consciously desires that result, whatever the likelihood of that result happening from [the person’s] conduct.’ United States v. United States Gypsum Co., 438 U.S. 422, 445 (1978). A person acts with knowledge when the person is aware ‘that the result is practically certain to follow from [the person’s] conduct, whatever [the person’s] desire may be as to that result.’ Id.”

State v. Hage, 595 NW 2d 200, 207 fn. 1 (Minn. Sup. Ct. 1999).
Gallagher-empowering-600 Minneapolis Criminal Defense
Lawyer Thomas Gallagher explains criminal defenses

Other criminal defenses

Beyond the government’s burden of proof on the elements, we have other types of criminal defenses.  These include Affirmative Defenses.

Defenses addressed here in detail, on other pages:




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Mental Illness

Minnesota Constitutional Defenses

Evidentiary issue defenses

Though technically not “defenses,” an effective defense includes pretrial motions and other efforts to suppress illegal and unreliable evidence:

Illegal Stop

Expansion of the Stop

Miranda Rights & Confessions

Involuntary Statements

“The spirit of liberty is the spirit which is not too sure that it is right… the spirit which seeks to understand the minds of other men and women… the spirit which weighs their interests alongside its own without bias.”

Judge Learned Hand

Affirmative Criminal Defenses

Some criminal defenses place an initial burden of production of evidence on the accused. And we call them affirmative defenses.

But once the defense attorney offers evidence supporting an affirmative defense, the burden of proof then shifts.  And the prosecutor must then persuade the jury beyond all reasonable doubt — that the defense should not apply.  And one example of an affirmative defense is Self-Defense.

Question? You can call Minneapolis Defense Lawyer Thomas Gallagher at 612 333-1500

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