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Common Defense Strategies

Mistaken Identity

Whilst it is not an easily proven defense, mistaken identity defense has been proven in some prior cases. Mistaken identity could be as a result of poor witness visibility, difficulties differentiating between ethnicities and races, different times of the day, etc. Mistaken identity relies on a situation whereby an individual could have been identified as the accused due to similarities.

Mistaken identity relies usually on witness evidence being discredited or an alternate theory being provided which might offer an alibi to the accused. There can be other factors such as DNA not matching, or in comparison, a familial DNA match being made which points the finger at the wrong person.

Self defense

Self defense is perhaps one of the most commonly used defense strategies however it is still reliant on certain factors. Self defense relates to the defensive actions of an individual to protect themselves from physical or bodily harm. The defensive action must be proportionate to the force used against them or the threat of harm that exists.

The court will need to consider whether the force used was reasonable force given the situation or threat. For example, if a man was hit to the side of the head in a bar fight and disoriented but not knocked out, it would not be proportionate for him to turn and stab his aggressor. That force would not be considered reasonable to the threat.

Mental Health

Insanity Defense

An insanity defense in criminal law is a difficult defense to argue. A plea of insanity is made on the basis that the defendant has a mental illness which is advanced enough to make them unfit to stand trial. It is a serious matter for a court to consider convincing evidence of this nature, particularly in relation to a murder case.

The intentional or accidental taking of a human life is one of the most serious charges an individual can face and it is considered a miscarriage of justice if severe penalties cannot be imposed. To prove an insanity defense however, psychological and psychiatric evidence would need to adduced. An insanity defense is a serious consideration because an individual may be classed as, not only, not fit for trial due to a mental disorder but also not fit for society due to the risk they pose.

Mental Health Facility

If an insanity or mental health argument is successfully made the penalty may be that instead of a term of imprisonment, a mental health facility is recommended. This is often the only mans the court has of protecting the public from possible violent confrontations.

Being subjected to treatment within a health facility does not on its own create the narrative that an individual was cognitively unable to have acted in the manner that they did. Mental health is not a cut and dry situation. Mental health does not provide an explanation for a person intentionally and unlawfully killing another individual.

How Do Defense Strategies Influence Sentencing?

If an individual has been considered to act in a manner to constitute murder then a defense strategy may be the only difference between life imprisonment and a lesser sentence. A finding of reasonable force, reasonable belief of harm or even unreasonable force as a self defense strategy may result in charges being downgraded or upgraded depending on the circumstances.

For example, a first degree murder charge may be downgraded to a manslaughter charge or even a justifiable homicide if self defense is proven. The maximum penalty for a proven murder conviction is life imprisonment and a lesser sentence may be the only achievement your legal team can make given the situation.

In comparison, solicitors need to be careful about the defense strategies that they do choose to run. Legal defences need to be both plausible and reasonable for the situation. Representing clients requires not only advocacy for their rights but it requires reasonable advice to be given. For example, a mental health defense which has weak or unconvincing evidence has the potential to anger the court. Angering the court will simply do nothing but potentially entice a harsher sentence.


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