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Defenses to Crimes

Criminal Defenses in Georgia

Although there are numerous ways in which to defend against criminal charges, there are several more common defenses asserted. The following is by no means an exhaustive list of defenses that can be asserted in Georgia courtrooms. Further, the following discussions are only limited explanations of the defenses. If you have been charged with a crime, contact a Marietta Criminal Defense Attorney or Cobb County Criminal Defense Attorney immediately. Ben can also be reached any time at 404-985-9772.   

Insufficient Evidence

This is technically not a defense, and is better characterized as attacking the State's burden of proving guilt beyond a reasonable doubt. Nevertheless, many cases are contested on the basis that the State cannot meet its burden of proof on one or more of the elements of an offense. Part of the State's burden of proof is that they have to prove each and every element of an alleged crime beyond a reasonable doubt. If the evidence is nonexistent on one or more elements, the defendant cannot be found guilty. 

Many times in a trial, after the State rests, the defense will argue that the judge, as a matter of law, must acquit the defendant of one or more of the charges. In order to succeed on such, the State must have failed to introduce any evidence whatsoever on one or more of the elements of the offense. For the most part, slight evidence is all that is required in order to let the jury decide the case. On appeal, when an appealing defendant is arguing that the evidence was insufficient to sustain a conviction, the appellate court will review the evidence in what is called "the light most favorable to the verdict." Therefore, if there was any credible evidence supporting the allegation, the evidence will be deemed sufficient. For these reasons, sufficiency of the evidence is not typically a successful claim on appeal. 

Self Defense

In any case where you are charged with a violent crime, you may have a defense called self-defense. Though the term is self-explanatory, the concept is more complicated than one might think. Self-defense is one of many affirmative defenses, meaning that the defendant admits doing the act they are charged with, but claim that they were legally justified in doing so. Once an affirmative defense is established at trial, the State has the burden of disproving the defense beyond a reasonable doubt.  

Self-defense claims can actually be asserted before going to trial. The procedure for this is filing a motion for immunity from prosecution. Therein, the defendant contends that he or she was acting in self-defense and therefore cannot be prosecuted for whatever charges have been leveled against them. A hearing will be conducted on this motion, where witnesses can be called by both parties. The State has the burden of proving that the defendant is not entitled to the immunity he or she is seeking. If the motion is granted, the case against the defendant cannot proceed and must be dismissed.

If the immunity motion is denied, self-defense can still be argued at trial. Again, the State has the burden of disproving that a defendant acted in self-defense if even slight evidence of this is presented at trial. Generally, a defendant can only use enough force to repel the amount of force being used against him or her. Thus, if someone merely slaps another person, retaliation with a weapon will likely be excessive force and any self-defense claim will fail. 

Many other principles of law involve self-defense, including the duty to retreat, the stand your ground laws and the right to defend other people and property. 


Also an affirmative defense that the State has the burden of disproving, accident attacks the intent element of a criminal offense. The defendant admits that he or she committed the particular act, but claims that he or she did not do so intentionally. 

Accident is not an available defense to what are called strict liability offenses, where intent is generally not at issue. For example, someone who causes an actual car accident cannot claim accident as an affirmative defense. 

Mistake of Fact

This is another affirmative defense, where the defendant admits he or she committed the act he or she is charged with, but contends that absent a misapprehension of a fact he or she would not have done so. Once raised, the State has the burden of disproving this defense. Just like accident, this defense asserts that the defendant did not have criminal intent to commit the offense. 

Mistake of fact can sometimes be confused with a mistake of law, which is not a defense. A person cannot commit a burglary and defend himself on the basis that he did not know burglary was a crime. On the other hand, if a person were to lose their house keys and break into what he or she thought was their own house, when in fact it was someone else's house, this would entitle that defendant to a jury instruction on the defense of mistake of fact.


Generally, this defense is all about the government inducing someone to commit a crime when that person is otherwise not predisposed to commit that crime. To constitute entrapment, the idea to commit the crime must have originated with the government actor, and not the defendant. Once a defendant makes a sufficient showing at trial that this is a viable defense, the State has the burden of disproving such beyond a reasonable doubt. 

Similar to other affirmative defenses, a defendant must admit to committing the crime he or she is charged with in order to assert an entrapment defense. This does not mean, however, that the defendant is required to take the stand and testify as such. Instead, it means that the defendant cannot contest at trial his or her commission of the crime.

Entrapment is not a frequently used defense, though it most commonly is asserted in drug-related prosecutions.  


Voluntary intoxication is not a defense under Georgia law. Therefore, a person cannot go to a bar, drink 12 beers, commit a crime, and then blame their behavior on the beer they consumed. Criminal defense lawyers know from experience that much crime is related to the use and abuse of drugs and/or alcohol. If voluntary intoxication was a defense, it would excuse lots of criminal conduct in our society. Obviously, the government does not want to encourage this.

On the other hand, involuntary intoxication is a defense. This does not mean that a person can drink 12 beers, commit a crime, and argue that they did not know the beer would intoxicate them. The classic example of involuntary intoxication is when someone introduces a foreign substance into another's body without their knowledge. If a roofie is slipped into someone's drink, and that person ends up committing a crime, this may present an involuntary intoxication defense. 


Also known as duress, this affirmative defense asserts that the defendant committed the act he or she is accused of only under fear of imminent death or serious bodily injury. This can be an affirmative defense to any crime, except murder. Thus, if a person were to hold a gun to someone else's head and order them to kill a third person right then and there, the subsequent murder would not be defensible on the basis of coercion.

Coercion is analyzed on an objective basis, that is whether a reasonable person under the circumstances would have reasonably feared imminent death or serious bodily injury. If the defendant had a reasonable way to escape the threat of harm before giving in and committing the crime, the coercion defense will fail. Additionally, if the threat of harm is not imminent, coercion does not apply. In other words, if one person were to threaten another over the phone that they will kill them that evening if they don't commit a crime right then, the threat of harm would not be imminent.   

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