A political defense is a defense to a criminal charge in which the defendant asserts at trial the political motivations behind the allegedly criminal conduct. In some circumstances, the defendant might assert political motivations in order to seek acquittal. In other circumstances, defendants might not have a realistic hope of acquittal but may nevertheless use the trial as a forum for expressing political views.
A political defense is distinguished from a legal defense. A legal defense, or a "technical defense", seeks acquittal by demonstrating that the defendant's conduct did not satisfy all of the elements of the alleged crime. In a political defense, the defendant might concede that the conduct took place, but attempt to convince the jury or the public that the conduct was inherently just because of its political motivation. Some defendants might offer both a technical defense and a political defense.
The form that a political defense will take depends on its objective, audience, message, legal theory, and tactics.
There are several reasons why a defendant might attempt a political defense.
Each of these reasons implies a different audience for the political statement. Where the defendant seeks acquittal, the principal audience is the jury. Where the defendant seeks public advocacy, the principal audience is the media that are covering the trial, and through them the public. Where the defendant seeks personal integrity, the audience is himself or herself, or possibly also any collaborators in the conduct being prosecuted.
This difference may influence the choice of legal strategy: if the purpose is public advocacy, then a defendant may attempt to include political statements that would be persuasive to the public even if they would not be persuasive to a jury; the defendant might not be acquitted, but might succeed in communicating the message to the public.
Defendants may have been motivated by several political purposes, and they may choose which message to communicate at trial. This choice is most important where the objective is public advocacy. In other cases, the choice may be more evident: for purposes of personal integrity and confrontation of the state, the defendant probably knows the political views that they seek to communicate; for purposes of acquittal and extracting information from the state, there may be a limited number of arguments that are likely to be successful. However, where the objective is to attract and influence public opinion, the message that is most likely to succeed is not necessarily the same as the political view that principally motivated the defendants.
Rules of evidence require that any statement make in court must be relevant. Defendants must have a legal theory of innocence for which their political message is a necessary element to be proven.
There are several legal theories that allow defendants might make political statements within a criminal proceeding. They can be divided into three categories: affirmative defenses, inadequacy of mens rea, and shadow defenses.
An affirmative defense is a defense established by law, according to which the law endorses conduct that is otherwise illegal.
Each of these defenses requires that the defendant show that their actions were mitigating or preventing some greater harm or some other illegal conduct. In order to prove this defense, the defendants will be able to submit evidence and witness testimony describing their motivations or communicating other political messages.
Mens rea refers to the mental state that is required in order to be found guilty of the offense. Some statutes require that the person not only knew that they were committing the illegal act, but also that they did so with an unlawful purpose. When charged with this kind of crime, defendants will be permitted to testify in detail about the political views that motivated their action.
A shadow defense is a legal defense that will enable the defendant to communicate his or her message, even though the legal defense itself is not likely to succeed. A shadow defense can be any legal theory, including an affirmative defenses. What makes a legal theory a "shadow defense" is that the defendant does not expect to be successful as a matter of law; it is, instead, a pretext for bringing information into the court that would otherwise be irrelevant and therefore inadmissible.
For example, in the trial of the Camden 28, the defendants made an entrapment defense alleging that FBI agents had convinced the group to undertake their allegedly illegal conduct. While making their entrapment defense, the defendants called witnesses to discuss the history of the use of agents provocateurs by the government and also the history of civil disobedience; they also called character witnesses such as a defendant's mother in order to discuss the defendant's peaceful tendency and also his political beliefs.
The shadow defense is related to the idea of jury nullification. Jury nullification occurs when juries decide to acquit defendants even though the defendant has violated the letter of the law. Juries might seek nullification where they agree with the political motivations of the defendant. However, the defendant must first present information about his political motivations to the jury. A shadow defense might be used to convey this information to the jury, not because the defense itself is likely to succeed but because it provides a vehicle for informing jurors about sympathetic personal characteristics of the defendants.
Other causes of jury nullification may include a belief that the law at issue is unjust or unduly harsh, a belief that the prosecution is abusing its power, or a belief that the defendant is not receiving fair treatment on account of his race, color, creed, sexual orientation, or other characteristics.
Defendants may use other tactics to communicate their message.