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What is the difference between a defense and mitigation in a criminal case?

What is the difference between a defense and mitigation in a criminal case?

If you’re charged with a crime, especially anything serious, it’s important for you to understand the difference between a defense and mitigation. Success in your case is dependent on you and your legal team understanding the meaning of each, and how to best utilize them.

A defense in a criminal case means a reason that you either aren’t guilty or the crime charged or a reason why the state can’t prove you’re guilty. Which defense applies and how it’s used depend on exactly what specific crime you’re accused of doing, as well as what the specific evidence gathered by the police is.

Mitigation in a criminal case means reasons why you either don’t deserve to be prosecuted or you otherwise deserve special leniency from the prosecution or the court. Mitigation doesn’t mean you aren’t guilty, instead it refers to the special circumstances in your case or with you that entitle you to a special break.

You and your legal team have to work together to develop the best defense for your case, and also to determine what mitigation factors might also exist. Some people become frustrated when they confuse the two, this can lead to mistakes in how a criminal case is handled leading to poor results.

Here are some examples of things that are defenses:

  • You are charged with shoplifting after leaving a pack of steaks in the bottom of your buggy during checkout at the grocery store. It’s a defense to shoplifting to claim you forgot to ring them up, and didn’t intend on stealing.
  • You’re accused of armed robbery, but you can prove you were at your girlfriend’s house at that time. This is a defense called an alibi.
  • You’re accused of murder, but you can prove that you were in fear of your life and acted in self-defense. This is a defense called self-defense.

Here are some examples of things that are mitigation:

  • Not having ever been arrested before
  • Needing to pass a criminal background check to keep your job
  • Working on drug treatment and being able to pass a drug test

Use of either strategy isn’t mutually exclusive either. You can try to argue that you aren’t guilty of the underlying crime, but at the same-time provide reasons why you should also be entitled to leniency with the court.

Understanding these two important concepts in criminal defense can make the difference between success or failure in your case. If you’ve got a criminal case and you’d like to discuss what defenses you may have and/or how a mitigation strategy could help contact us for a free consultation. 


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