My Client Didn’t Do It, He Had Good Reason to Do It, and He Doesn’t Deserve to Be Punished

Earlier this morning, there was a thread in one of my social media digests about trespassing to save a pet. As is common on the internet, the conversation shifted back and forth, becoming more complex and diffuse as opinions on the reasonableness of certain behaviours mixed with opinions on their legality, and with opinions on how reasonableness affect legality. While the answers were valid in themselves, they suffered from the implied (or in a few case explicit) presumption that crimes are a single question: either you are innocent or you are guilty. While this might be true in one sense, courts treat getting to that point as a process rather than a single question, with responsibility for parts of the process shifting between parties to the case. As I believe it’s useful for everyone to have a clearer understanding of how legal systems work, I set an overview below.

Alleged Crime

Each crime has a set of specific things (physical actions, conscious states, or some combination) that need to have occurred for certain behaviour to be a crime (for example, murder requires that the accused kill someone). If the person prosecuting the crime proves to a high enough standard that those specific things did occur then the accused is presumed (not proved) to have committed the crime (for example, someone with a description matching the accused was seen stabbing a person and that person was found dead from stab wounds two minutes later).

At this point, the burden shifts to the accused to challenge this presumption if they wish by entering a defence. This defence can challenge the facts alleged by the prosecution, challenge the interpretation, or do both.

Defence Challenging Facts

The accused enters evidence that one or more of the specific things needed for them to have committed the act didn’t happen (for example, they were in another place at the time the stabbing happened). The burden on the accused is only to prove to a high enough standard that a necessary thing didn’t happen, not to prove what did happen (for example, a defence saying they weren’t present doesn’t require they provide any comment on why a witness description matches them).

If the accused proves at least one of the specific things didn’t occur with sufficient certainty then they are found not guilty.

Defences Reinterpreting Facts

The accused accepts that the specific things happened, but argues that they shouldn’t be interpreted as a this crime. This can either be a justification or an excuse.

  • Justification: the accused’s actions are morally or ethically positive enough that their actions aren’t considered a crime. For example, self defence: society believes that protecting oneself and others from crime is a good act; so an accused who agreed that they stabbed someone deliberately but had a reasonable belief that it was the only way to stop that person killing several other people would not have committed a crime.

  • Excuse: the accused’s actions are not morally or ethically positive enough to be justified, but equally they are done for a reason that society considers significantly less immoral or unethical than usual; and thus considers a lesser crime. For example, provocation: society believes that physically attacking someone who isn’t about to harm oneself or others is disproportionate; however, certain behaviour might make it understandable why someone would attack when not directly threatened. So, an accused who stabbed someone because that person constantly belittled and insulted them would not be able to claim self defence (because their life wasn’t in danger) but might be convicted of manslaughter rather than murder because the repeated frequent verbal abuse provoked them enough it was understandable they’d lash out.

At this point, the accused will either be proved guilty or not guilty of a crime. If they are found guilty, they then have a burden to show any reasons that they should receive a more lenient sentence.

Seeking Leniency

Arguments to support a lower sentence divide into two areas: impact of the sentence on the accused and factors that make the crime having happened less severe.

  • Clemency: the accused (or someone else) would be unfairly punished by the usual sentence. For example, the usual sentence for driving while drunk would include the loss of driving license; however, if the accused was a single parent whose job involved driving to places that required frequent visits to customers in the middle of nowhere, taking away their license would also take away their job so the impact on their child’s life would support not taking their licence.

  • Mitigation: some part of the events from initial act to conviction was less severe than usual. For example, the accused admitted their actions at the first opportunity, saving society time and expense. These arguments can seem to overlap with a defence that claims an excuse (e.g. hitting someone who provoked you might both be provocation and a reason the act was less severe than a random attack), but they act in different ways: a defence argues that the accused committed a lesser crime, whereas a plea in mitigation argues that the accused should be punished less than average for the crime they have committed.

This is only an overview, so some crimes or jurisdictions might not follow this perfectly; however, I hope it will provide a useful starting point for questions of whether someone has committed a crime and whether they should be punished.

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