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Defenses to Criminal Charges in SC: Alibi, Self Defense, and More
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Defenses to Criminal Charges in SC: Alibi, Self Defense, and More

Innocent until proven guilty” is a familiar phrase to most of us. Characters in movies and TV shows state as if it’s law. Many even assume those words are part of the Constitution. But they’re not.

When you’re charged with a crime in SC, the prosecution is required to demonstrate that you are guilty beyond a reasonable doubt.

If the prosecution can show that your conduct and intent caused harm and broke the law, you could be looking at a guilty verdict. That could turn your whole life inside out.

So what can you do about it?

Facing a criminal charge is overwhelming. Therefore, it’s important to have a criminal lawyer in your corner.

So whether you’re facing misdemeanor charges or felony charges, review the details of your case with an experienced attorney. A criminal defense lawyer can examine your criminal record and help you mount a strong defense.

Because each case is different, there’s no one-size-fits-all approach to criminal defense. The facts of your case and your criminal charges will influence which defense options are most applicable to your situation.

I’ve compiled a list below of the most common defenses attorneys can use when representing their clients.

Defenses to Criminal Charges

You and your attorney may decide that an affirmative defense is the best course of action. An affirmative defense means that you and your lawyer have the burden of proof. Most of the time the burden of proof is on the prosecution, who must prove your guilt. This affirmative defense type of approach is different in that you, the defendant, must prove your innocence. You are not required to have an affirmative defense, but it can be a good strategy to use if you do.

When building your case, there are a few approaches you can take. Your lawyer will work with you to decide if one of them works with your case and which one is best for you.

The most common affirmative defenses are:

Let’s take a more in-depth look at each of these affirmative defenses.

Alibi Defense

An alibi is a claim that the charged person couldn’t have committed a particular crime because he or she was somewhere else when the crime took place. The accused individual has to prove his or her alibi through evidence such as:

  • Eyewitness testimony
  • Phone or GPS records
  • Photographs
  • Swipe card records
  • Video footage

Common Questions About the Alibi Defense

Is notice of an alibi defense required?

Yes. The defense must give the solicitor prior notice that they will present an alibi as evidence of innocence.

Real-life criminal justice isn’t like the courts in movies and TV shows. You can’t just surprise the prosecution with an alibi in the middle of court proceedings.

Who has the burden of proof with an alibi defense?

The defendant has to show evidence of an alibi and must also prove that the alibi is true. Then the prosecution has the option to try to demonstrate that the alibi is false. They can question any witnesses that you presented to try to show they are lying for you.

Is the alibi defense an affirmative defense?

Yes. As with any affirmative defense, the burden of proof is on the defendant. The accused and his or her defense attorney have to prove innocence, the opposite of the “innocent until proven guilty” concept.

The prosecution still has to show that the defendant meets the other elements of the crime–conduct, intent and harm–along with attempting to disprove the alibi.

Duress Defense

This defense claims the defendant committed the crime against his or her will due to violence or a threat of violence. In other words, the defendant committed the crime “under duress,” meaning by intimidation or force from another person. Here is an example. You are charged with shoplifting, but you claim you were forced to do it by someone who was armed with a weapon and said they would kill you if you didn’t do it.

The defendant has to prove there was:

  • An immediate threat of death or serious bodily injury
  • Real fear someone would carry out the threat
  • No reasonable opportunity to escape

Common Questions About the Duress Defense

Is duress an affirmative defense?

Yes. That means the defendant and his or her lawyer has to prove everything, just like with an alibi defense or any other affirmative defense.

To prove duress, the defense must show that the defendant believed he had no choice but to commit the crime–that the threat of violence pushed the defendant to do something he would not do under normal circumstances.

On top of that, the defense has to demonstrate that the defendant couldn’t get out of committing the crime because there was no reasonable opportunity to escape.

What is a “reasonable opportunity” to escape for the duress defense?

The judge or jury will want to know if the defendant had a chance to escape rather than commit the crime. In this case, “reasonable” is the key indicator.

There might have been a possible escape route that would be deemed unreasonable. For example, a reasonable person would not jump off the roof of a building to escape, even if it were possible.


In criminal cases, the defense can argue the defendant was protecting himself or herself–or others–from violence. The defense has to prove that the defendant responded with force due to an immediate threat of violence or a reasonable fear of harm.

This defense is most commonly used in murder and assault & battery cases, but is not limited to those charges. An example would be - you are charged with murder for shooting someone who entered your house. You claim self-defense since you feared your own life would be taken by the intruder.

Common Questions About Self-Defense

What does self-defense mean?

Self-defense is the act of protecting yourself or others from violence. Defendants can use a self-defense argument in court to try to convince the jury to acquit (find him or her not guilty).

Is self-defense legal?

Yes. Self-defense is legal, but the defense has to meet certain conditions, which are explained below.

When is self-defense legal?

First, there has to be an immediate threat to a person’s safety or a reasonable fear of harm. If the defendant responds with violence, his or her responding actions must be a “proportional response.” In other words, the actions taken in self-defense must be similar or in kind with the threat of violence.

For example, if someone pulls a gun on you, and you shoot the person before he or she can kill you, that would be a proportional response. If someone threatens to beat you up and starts throwing punches, pulling a gun and shooting the person would not be proportional; it would be going overboard.

When can self-defense be used?

A person can use self-defense when he or she reasonably believe his or her life is in immediate danger of violence. An individual may utilize self-defense during an assault, for instance. Self-defense also is legal when protecting your home from intruders. The law terms this scenario the “Castle Doctrine.” You have the right to defend your “castle,” meaning your home.

“Stand Your Ground” Defense

The defense commonly called “Stand Your Ground” is called the Protection of Persons and Property Act in South Carolina.

Under this defense, if an intruder is entering your home or an occupied vehicle without your permission you have the right to defend yourself. You may even use deadly force. It also applies if the intruder is trying to take someone against their will from your home or occupied vehicle.

You don’t have to be the owner of the home or vehicle to be able to use this defense. As long as you were invited into the owner’s home or vehicle you are covered.

Insanity Defense

The insanity defense claims the defendant cannot be responsible for criminal actions because he or she was not sane when committing the crime.

The insanity defense isn’t common: less than one percent of defendants charged with a felony charge use the insanity defense, according to Dr. Leonard Mulbry of South Carolina Forensic Psychiatry.

To be successful, the defense must prove that the defendant was unable to distinguish between right and wrong–from either an ethical or a legal viewpoint–at the time of the crime. South Carolina penal code uses the M’Naghten Rule for insanity pleas, which states that the defendant didn’t understand what they were doing due to a diseased mind.

Common Questions About the Insanity Defense

How successful are insanity defenses?

Insanity defenses can be difficult to prove, so this approach isn’t often successful. Insanity pleas have a success rate of about 25 percent, according to Carol A. Rolf, J.D., professor of criminal justice at Rivier College.

There are two desired outcomes in the cases that do succeed:

  • Not guilty by reason of insanity
  • Guilty, but mentally ill

A verdict of “guilty, but mentally ill” is still considered a success because such punishments are less harsh than a regular guilty verdict. The defendant will usually will be sentenced to a psychiatric institution rather than jail.

When can an insanity defense be used?

People who suffer from a mental illness can use an insanity defense. The idea is that the accused individual wouldn’t have committed the crime if he or she didn’t suffer from a mental disorder.

Common mental disorders used in insanity pleas include:

  • Bipolar disorder
  • Depression
  • Post-traumatic stress disorder (PTSD)
  • Schizophrenia

Can you plead a temporary insanity defense?

Yes. Accused people who do not have documented mental disorders can claim temporary insanity.

Temporary insanity means the defendant was insane only when committing the crime, so he or she was not capable of understanding the nature of his or her actions.

Temporary insanity is a difficult claim to prove, since the brief period of insanity is over by the time the case goes to trial.

Other Defenses

There are other approaches to criminal defense besides the traditional affirmative defenses. Maybe the defendant committed the crime by accident. Or perhaps the defendant didn’t commit the crime at all.

An experienced criminal defense attorney can help you gather the evidence needed for these cases.


Accidents happen, and sometimes accidents cause crimes. To use the accident defense, intent to commit the crime charged must be an element of the offense. “Element” means requirement.

For example, a murder charge requires that the defendant intentionally killed someone, meaning they meant to do what they did. However, if your car hydroplanes and kills a cyclist, you didn’t mean to kill anyone. In that case, you could use an accident defense if you were charged with murder.

Innocence (someone else did it)

Sometimes law enforcement arrests an innocent person and charges him or her with a crime even though someone else did it.

If a police officer arrests you for a crime you didn’t commit, a criminal defense lawyer can help you prove your innocence.

What’s not a defense to a criminal charge?

There are some arguments you may make to justify your criminal actions that won’t count as a defense in court. You cannot use the following arguments as criminal defenses, even if they’re true:

  • Peer pressure caused you to commit the crime
  • You regret what you did
  • You were scared you’d get caught, for example:

Whether you’re dealing with a misdemeanor like criminal mischief or drug possession, or a felony like drug trafficking, you need someone in your corner to fight for your rights.

Ready to discuss your criminal case?

If you’ve been arrested for a criminal charge, you need an attorney immediately. I’ve helped many people with their criminal cases, and I’d like to help you, too. Give me a call at 803-779-4472, and we can discuss how to proceed with your case.

Ready to Speak with an Attorney?

Contact Lori Murray to discuss your situation.

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