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Dennis R. Boren Aug. 24, 2020

This is Dennis Boren, criminal defense attorney and former felony prosecutor. Today I want to talk to you about whether you can commit a crime and get away with it. The answer to that is yes, you can. It’s called affirmative defenses.


Essentially. what an affirmative defense is saying is that, “Yes, I did it, but there’s some mitigating or excusing factor.” I’m going to run through a few examples of these with you.


The first one is mistake of fact. This means that you reasonably were mistaken about something. Here’s a really easy example: you picked up someone else’s cellphone, and you took it home. Well, the reason you did it was because it looked just like your own cellphone. That same could be true with anything, for example with luggage. That’s mistake of fact.


Mistake of law is another affirmative defense. Now this one is a little tougher because of the old adage, “ignorance of the law is no excuse,” which is generally true. You’re held to the standard that if it’s a law, you are deemed to have known it even if you may not have actually known it.

Let’s say you were relying on some official agency or official who made a statement, such as for example the attorney general came out and said, “Marijuana is legal.” That’s a very unlikely situation, but that would be an example of that.


We’ve all heard of the insanity defense, which of course means that you’re not legally culpable or chargeable or responsible for the consequences of your actions if you don’t know what they are. Now that’s a difficult defense, and once the defense raises it, it’s up to the prosecution. They have to use a higher standard.

If it’s raised by the defense, it’s only has to be proven by what’s called preponderance of the evidence, which means that more likely than not this person is insane. Then the state has to prove beyond a reasonable doubt that they are in fact sane.


Another common one is self-defense. You did kill somebody, for example, but you did it in self-defense. I’m going to discuss the Castle Doctrine in another post, but self-defense is another affirmative defense.


Duress is another one. It’s a little bit different depending on whether you committed a misdemeanor or a felony. Let’s say someone is threatening you, and you commit a crime, a misdemeanor. Again, it can’t just be that you merely believe you’re being threatened because the guy looked at you and maybe crossed his eyes. It has to be more than that.

If you committed a felony, in order for duress to be a self-defense, you have to reasonably believe that you’re being threatened with imminent bodily injury or death should you not commit the crime.


This isn’t about voluntary intoxication. Voluntary intoxication is never going to be grounds for an affirmative defense. Involuntary intoxication, on the other hand, is. Here’s a classic example: someone has slipped a Mickey into your drink.

Another common one is somebody takes Ambien, and really didn’t remember what they did. And if they were to commit a criminal offense, even though they meant to take the Ambien, they certainly didn’t intend for it to have that effect.


Entrapment is another one. That simply means that you were induced to commit a crime by law enforcement. It must be something that would also induce an average or regular person in your situation. It can’t just be unique to you. There’s this reasonable standard again.

And it’s more than just giving somebody an opportunity to commit a crime. This is done all the time. For example, the police may leave a bait car out for a car thief to come by and get. Once they start it, it dies at a certain point and the doors all lock. That is not entrapment.


Age is another one. In Texas, if you’re less than 15, you cannot be charged as an adult. And you have defenses against everything except traffic offenses, and lying under oath. From 15 to 17, you can be certified as an adult, and I’m not going to get into the weeds about that, but there is a process where it has to be proven. If you’re 17 or older, you’re fully liable. You’re an adult for purposes of criminal law.

If I can answer any questions, or if you have anything that comes to mind regarding this that you need to know, please reach out to me. I’d be happy to answer your questions. And remember, if you’re ever engaged by a law enforcement officer, turn on your smartphone’s video app, and record what’s happening. That can protect you.