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Theft Defenses

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Just like any other crime, there are many defenses available to you when you are charged with theft.  Because of the nature of theft, some of these defenses are unique to the crime of theft

The Specific Intent Defense

One of the most common theft defenses is that you lacked the specific intent required to commit the crime.  Theft is a specific intent crime, which means that there is some requisite purpose or intent you must have when you commit the act that constitutes the crime.  This intent is usually the intent to deprive the owner of his/her property permanently.  If you don't intend to deprive permanently, but are just borrowing for example, you cannot be convicted of theft.

An Example of the Specific Intent Defense

To help make this defense clearer, here's an example: Suppose you are accused of stealing someone's laptop computer.  In order to be convicted of theft, the government must be able to show that you intended to permanently deprive the owner of his/her laptop.  Now, if you were just borrowing the laptop to look something up and fully intended to return it, you cannot be convicted of theft.

The Big Problem with this Defense

There is one drawback to this defense, just as with any other.  In order for the defense to work, the jury (or judge depending on your case) must believe you.  If you took the laptop in the above example and kept it for three weeks without returning it and you didn't have permission to take it, it is unlikely that anyone will believe you were just borrowing it.

Other Defenses for Other Types of Theft

The defense that you lacked the specific intent to commit theft applies to most every form of theft, but there are also defenses that apply to the specific variations of theft.  Here are a few examples: 

  • False Pretenses - The crime of false pretenses requires that you make some misrepresentation of the truth in order to convince someone to transfer ownership of the property to you.  If ownership does not pass, then you have not committed false pretenses.
  • Larceny by Trick - Unlike false pretenses, larceny by trick only requires possession to be transferred, not ownership as well.  So, just because you have gotten out of false pretenses does not mean you're off the hook.  The defense that you were just borrowing what was taken will still be available to you.
  • Theft by Possession - If you didn't know the property was stolen, you cannot be convicted of theft by possession.
  • Auto Theft - Again, the defense that you were just borrowing the car is still available, but most states now have joyriding laws that make borrowing a car without permission illegal.

I've Been Accused of Theft, Do I Need a Lawyer?

Anytime you are accused of a crime you should consult a lawyer immediately.  An experienced criminal defense lawyer can advise you of your rights and defenses.  In addition to the above mentioned defenses, there may be many others available to you as well.  A lawyer with experience in criminal law will be able to represent you in court if necessary.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 11-29-2016 05:10 PM PST

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