Common Defense Claims in North Carolina

While criminal defense on television may seem like a matter of delivering the most emotionally moving or meticulously creative arguments in favor of the defendant, the reality of the law is much more restrained. Criminal charges all have specific elements that need to be proven by prosecution, so facts that are unrelated to those elements or any overarching laws will be of no use to the defense, no matter how relevant they may seem. Even more so, many criminal charges declare in their statute that certain arguments cannot be used as a defense. That being said, lawyers still have room to use certain facts or come up with interesting arguments, but they must find ways to tie them into a valid defense approach first.

If you are facing criminal charges, your lawyer should help you understand what defense claims or arguments they can present that would help or hinder your case, which can take several forms.

judges gavel in a courtroom, where the defense attorney will argue various bars and defenses to prosecution

Defenses that Justify

Sometimes the best defense approach is to admit that the defendant committed the act and knew what he or she was doing, but had a valid legal justification for doing so. There are a limited number of legal justifications available for certain crimes, as discussed below.

Self-Defense, Defense of Others, and Defense of Property

These defenses, also called “defensive-force defenses” can justify forceful conduct that would otherwise be criminal. Generally speaking, a person may use an amount of force against another that is considered reasonably necessary to prevent the other person assaulting them, another person, or property.

Determining what is a reasonably necessary amount of force depends on the facts of the case, but are mostly based on the extent of force used in defense and the threat the other person posed. For example, self-defense may justify killing another person if the defendant reasonably believed the attacker would kill or cause serious bodily harm to the defendant or another person. Defense of a property typically only justifies non-deadly force, but deadly force could be used to defend a person’s home, workplace, or motor vehicle if the attacker posed enough of a reasonable threat.

Necessity and Duress

If a person commits a crime under force of certain circumstances, the act may be justified by “necessity”. In North Carolina, these circumstances occur when a person chose to commit an act that would typically be a crime in an effort to protect “life, limb, or health” in a reasonable manner with no other acceptable choice. In essence, a person may be considered to have acted in necessity if they were in a situation where they had to chose between the lesser of two-evils, and chose the lesser. When the cause of the pressure comes from another person, the defense is called “duress”.

This defense in North Carolina applies only to circumstances where a person is saved from death or danger, but not to other things like property damage. For example, trespassing onto private property to dock a ship with passengers to prevent their certain death from a storm could be justified by necessity. Conversely, pursuing somebody with stolen property while carrying a weapon in an area where the weapon is not permitted would not be justified by necessity, as other alternatives were available and preventing theft or property damage cannot be justified by necessity.

Necessity is also not a defense that can be used to excuse criminal activity by those who disagree with the law or policies of the government. For example, anti-abortion activists who trespassed onto an abortion clinic’s property in an effort to save fetuses from abortion could not claim necessity, as the law allows for such abortions to be performed.

Public Authority

Public officers are justified in taking certain actions if they are acting pursuant to law or court order. These actions include using reasonable force against others, entering onto private property, or taking another person’s property. For example an officer is not guilty of trespass for entering a home pursuant to a valid search warrant. An officer loses this defense if they go beyond their authority, such as in police misconduct cases.

This law is not just limited to police officers, but other public officers as well. For example, ambulance and fire truck drivers are exempt from speed limit requirements if they are responding to an emergency.

In some cases, a person who is not a public officer can use this defense if the offenses was acted at the command of a law enforcement officer.

Domestic Authority

There are some instances where a person without public authority can claim authority by virtue of their private position. For example, a parent or teacher have domestic authority over a child. This means they can impose reasonable punishment to correct a child’s behavior (such that it does not meet the criteria of child abuse), where other adults not acting in authority over the child do not have such right.

Crime Prevention

There are limited circumstances where a person can justifiably act in a manner that would otherwise be a crime if it was done so to prevent the crime of another person. Generally, this applies to cases of self-defense, defense of others and of property, as described earlier. However, this defense has been used on occasion ion for other actions, such as detaining a person who committed a crime in an effort to turn them into law enforcement custody, so long as the detention was reasonable and they surrendered the other person as quickly as possible.

Defenses Showing Lack of Blameworthiness

Sometimes a defendant can admit to performing an act while not having a valid legal justification, but can demonstrate that they were not to blame. Essentially, this is an “excuse” defense where the defendant can claim they were not responsible for their actions.


Entrapment occurs when a person is induced into committing a criminal offense by a law enforcement officer or some other person acting on behalf of a public agency. In North Carolina, for a claim of entrapment to succeed the defense must show that both the following occured:

  1. Law enforcement officers or their agents induced the defendant to commit the charge offense by trickery, fraud, or persuasion.
  2. The defendant was not predisposed to commit the offense.

Essentially, the defendant must have been tricked or persuaded into committing a crime that they otherwise would not have committed. The second element, predisposition to commit the offense, is often where the success of entrapment claims are determined. For example, a law enforcement agent pretending to be a child on an online chat service and enticing an offender to agree to an unlawful sex act with little hesitation, is not entrapment. This is because, while the officer did induce the person to commit a crime by trickery or fraud, the officer only provided the person with an opportunity to commit the crime, but they must have developed criminal intentions to take that opportunity.


The law generally recognizes that minors are not as culpable as adults when it comes to criminal activity,, due to their immaturity. In North Carolina, a person under the age of 16 but over the age of six who commits a crime is generally not subject to a trial in adult courts, but instead will be brought into juvenile court. One exception is that if a juvenile above the age of 13 commits a class A felony (like first-degree murder), they will be tried as an adult. Children under the age of 6 are not considered mature enough to be tried in any court.

Immaturity of a defendant usually does not factor into a defense approach as it is based on the person’s age at the time of the offense, unless their age is a disputed matter.


For a defendant to be considered “insane” for the purposes of criminal responsibility, they must have had a significant deficiency in reasoning caused by disease or deficiency of the mind that made them incapable of knowing the nature and quality of his or her act, or incapable of distinguishing right from wrong.

While proving elements of the offense is the prosecution’s burden, a defendant is always presumed to have been sane, so it is the defense’s duty to prove insanity. Essentially, the government is not required to prove that the defendant was sane when they committed the offense. This means that a not guilty verdict by reason of insanity from the jury is never guaranteed, even if the government does not challenge the defense’s evidence of insanity.

Pleading insanity requires far more evidence than a simple testimony or a mental illness diagnosis alone. There are several tests for arguing legal insanity, some that rely on a clinical diagnosis and others that do not, but all of complex and do not guarantee a not guilty verdict.

If a person is granted a not guilty by reason of insanity verdict, this does not mean they will be rewarded with complete freedom. They will be subjected to a civil commitment proceeding to turn them in to the custody of a mental health institution, as opposed to a federal or state prison.

Unconsciousness or Automatism

A person may establish their innocence by showing that he or she committed the act while unconscious. The offense would then be referred to as “automatism”, which is defined in state law as:

the state of a person who, though capable of action, is not conscious of what he is doing.

Essentially, this defense argues that while the person is generally sane and would otherwise be culpable for the criminal acts, at the time they were committed they were unconscious. It is considered an complete defense in North Carolina, as the absence of consciousness excludes the possibility of having a criminal mental state as well as performing an act voluntarily. Like an insanity plea, the burden is on the defense to prove that the defendant was unconscious at the time of the offense, as defendants are presumed to have been conscious when committing an offense.

There are several circumstances where unconsciousness has been used a a valid defense in North Carolina, such as unconsciousness resulting from:

  • a blow to the head
  • epilepsy
  • fever
  • involuntary intoxication or involuntary use of drugs
  • sleepwalking or being asleep

One key exemption is that voluntary intoxication or use of drugs that lead to unconsciousness does not qualify for the defense. In general, the state of unconsciousness should have a variable of unwillingness to be in that state, such as due to illness, being assaulted, or being drugged by another person. Additionally, as unconsciousness is supposed to be proven throughout the offense taking place, if a decision to commit a criminal act was made while conscious but the offender was unconscious by the end of the act, they will likely not be able to claim this defense. For example, if a person takes sleeping pills and then consciously enters their vehicle under the influence of those drugs and later falls asleep while driving, they would still be liable because they committed part of the act while conscious.

Failure of Proof Defenses

A failure of proof, or “negating” defense is the most direct form of defense which challenges the facts of the case and whether the elements of the crime are all met. These defense arguments most often are not complete defenses, as they may negate elements of more serious offenses but not lesser-included offenses. There are many ways to take this approach which all depend on what the elements of the crime are and the evidence available, but below are some of the more common arguments.


An accident under North Carolina law occurs when a killing or injury took place during the course of lawful conduct, without any culpable negligence. In essence, if the defendant did everything lawfully required of them but their actions still resulting in a victim’s death or injury, it could be deemed an accident.

Accidents are not affirmative defenses, which means that they do not negate all aspects of the crime, they just negate the “mens rea” or state of mind element. This defense is not available to a person who was engaged in any kind of unlawful conduct when the killing or injury took place. For example, if somebody was unlawfully dislodging a firearm into a building they believed to be uninhabited, but ended up shooting and killing somebody inside, the incident would not be considered accidental.

Diminished Capacity

If a defendant had a diminished mental condition at the time of the offense but cannot establish the insanity defense, they still may argue a partial defense to some crimes. This defense can be used to introduce evidence of mental or emotional conditions that negate a person from being able to form a specific intent.

For example, the defendant may produce evidence of diminished capacity that, while not at the level of insanity, shows that they could not have formed the specific intent required to commit a first-degree murder that are based on premeditation and deliberation. This defense approach is not available to crimes that are based on “general intent”, or intent that only requires that the person knowingly committed a criminal act. It only works for crimes with specific intent which also require an intent to cause a particular result.

Mistake of Fact

Ignorance of mistake of a fact on behalf of the defendant can be used as a defense if it negates a required mental state for an element of the crime. This approach can only work for crimes that require the defendant was aware of some fact at issue.

For example, this defense can be used for a person charged with larceny of property if the defendant was under reasonable but mistaken belief that the property stolen was actually theirs. On the other hand, crimes such as statutory rape do not require the perpetrator to have known the victim was underage at the time of the act, so this defense cannot be used.

Mistake of fact is not the same as ignorance of the law, which in general cannot be used as an excuse to committing any crime.

Voluntary Intoxication

While voluntary intoxication was discussed earlier as not being a viable argument for an unconsciousness defense, it can be used as an incomplete defense to challenge the required mental state of a specific intent crime. This functions similarly to diminished capacity, as the defendant may be considered to not have been in a mental state capable of forming a specific intent to commit a crime. This means that it also does not apply to crimes that only require general intent to commit the lawful act. 

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