Legal Principles

These are some of the specific legal doctrines that judges in Illinois may apply when a criminal case is heard in court.

Solicitation - 720 ILCS 5/8-1

  • Solicitation is a criminal offense where someone asks, encourages, or hires another person to commit a crime with the specific intent that the person carries out the crime.

  • Solicitation is applied to countless criminal acts, ranging from the most serious felony offenses, to municipal violations.

  • To prove this charge, the prosecution must prove specific intent for someone to carry out the crime, often verbally, supported by encouragement or a monetary transactional offer.

  • For example, asking someone to perform a sexual act on you, for money, is solicitation of prostitution.

Conspiracy - 720 ILCS 5/8-2

  • Conspiracy can be charged when someone intends to commit a crime, and agrees with others, to commit that crime. After agreeing, at least one person must commit an overt act in furtherance of the agreement to be charged.

  • Conspiracy is a separate offense, punishable even if the planned crime was not completed.

  • Conspiracy is a hard charge to prove, often not charged or considered until the case is already brought in front of a judge before trial. Prosecutors are provided the opportunity to amend, add, or remove charges before trial, such as conspiracy, if they foresee the elements of a charge may not be met in totality.

Attempt

  • Attempt is a legal principle that requires specific intent to commit a specific offense combined with a substantial step toward its commission, even if the crime is not completed. 

  • The State can charge this offense, even when the intended action fails, but is still considered a substantial step furthering a crime.

  • Attempt can be applied to all criminal offenses, including municipal violations.

  • Attempt may seem similar to conspiracy, but attempt is utilized more regularly by prosecutors. Attempt charges can be filed against one person, while conspiracy requires two or more individuals. Attempt charges are regularly argued over the key point of analyzing whether a substantial step has been completed to further the crime in question.

Accountability Theory

  • Accountability theory is a legal principle applied to individuals in group settings, when a crime is committed. Accountability theory allows the State to charge individuals, who are in a group, when a crime is committed, even if they did not participate in the crime. This theory is powerful for prosecutors, as it carries serious weight to individuals who associate in criminal settings.

  • You can, and will, be charged with a crime, even if you do not participate. For policy reasons, the prosecutor attempts to hold groups accountable for individual actions within the group.

  • Charging someone under accountability theory is a slippery slope. Our firm deploys advocacy litigation tactics to question the group structure and participation in cases. These charges often rest on specific factual basis, such as whether the prosecution has strong evidence of the group setting.

Possession 

  • Possession is a legal theory used to prove when a person has knowledge or awareness, control, and proximity of property.

  • The court identifies two types of possession when applying this element to fulfill a statute: Actual Possession or Constructive Possession.

  • Actual Possession v. Constructive Possession:

    • Actual Possession: This term means an individual is holding, using, controlling, or otherwise physically keeping property.

    • Constructive Possession: This term is applied to people who do not have direct physical custody over the property in question. While knowledge is still essential to satisfy possession, the court may find even if you do not have the property on your person, you constructively possessed it through inferences. Inferences the court may consider include a totality of circumstances on a case by case basis, such as property ownership, opportunity to access the property, and previous control over the property.

Aiding and Abetting

  • Aiding and abetting means helping someone else commit a crime. Even if you don’t directly commit the crime yourself, you can still be charged and convicted as if you were the primary offender if you knowingly assist or encourage someone to violate the law. 

    • Prosecutors must show you knew a crime was going to be committed 

    • You intentionally helped or encouraged the person committing it

    • You took some action to assist through words, actions, or providing resources

    • Common examples include:

      • Getaway driver

      • Look out

      • Destruction or concealing evidence 

      • Provides tools or funds to commit a crime 

      • Planning or encouraging a crime 

Affirmative Defenses

  • Affirmative Defense - 720 ILCS 5/7-14

    • Defined as a use of justifiable force, or actions, as defined in this subsection. To establish an affirmative defense, the burden of proof shifts from the prosecution to the defense.

  • Self Defense / Use of Force in Defense of a Person - 720 ILCS 5/7-1

    • In Illinois, you have the right to use force to reasonably defend yourself if you are in danger, or feel that you are in danger. You have the ability to protect yourself, or someone else, with reasonable force.

    • You are authorized to use force if you feel or are threatened, the threat is unlawful, the unlawful threat causes danger to yourself, your property or others, and the force you use is equal to the force of the threat.

  • Use of Force in Defense of Dwelling - 720 ILCS 5/7-2 

    • Using force to protect property is justified if the property is a home, or place you are using as home such as an apartment, living structure where you sleep. A person must refrain from using deadly force to protect their dwelling unless they believe that force is necessary to prevent a violent action against persons within the home.

  • Use of Force in Defense of Personal Property - 720 ILCS 5/7-3

    • A person may use regular force against another to prevent or stop someone from interfering with personal property. Deadly force, however, is only allowed if a person has a reasonable belief that an offender is attempting to commit a forcible felony (murder, sexual assault, kidnapping, etc.) against that person possessing personal property.

  • Use of Force as an Aggressor - 720 ILCS 5/7-4

    • You are not allowed to use force if you are the aggressor. An aggressor is only allowed to use force only if the person reasonably believes that the threat against them will cause great bodily harm or death, they express an interest in stopping the use of force, and they attempt to escape the threat without success

  • Types of Force for Self Defense

    • Regular Force: This can be used as equal force to the threat. For example, in a fist fight, you can also utilize hand to hand combat in defense. If you feel threatened to the point that you believe you are in imminent fear of great bodily harm or death, force past regular may be applied.

    • Deadly Force: This force allows you to protect yourself or others from death, great bodily harm, or a forcible felony (murder, sexual assault, kidnapping, etc.).

  • Insanity - 720 ILCS 5/6-2

    • Insanity defense negates the ability to have the requisite mental state to show intent to commit a crime. To argue insanity, someone must be found to have a mental illness which results in a significant or substantive lack in mental capacity to understand the criminal act performed.

    • When insanity is argued, the burden of proof rests on the defendant to show they are suffering from mental illness after the case has been proven beyond a reasonable doubt by the prosecutor.

  • Compulsion (Duress) - 720 ILCS 5/7-11

    • In Illinois, duress can be a complete defense when the defendant committed the offense because of a threat of imminent death or great bodily harm. To claim compulsion, it must be established that: Someone threatened you, the threat was of imminent infliction of death or great bodily harm, you reasonably believed the harm would be carried out, you acted because of the threat and the threat was to you, your spouse, or your child.

  • Entrapment - 720 ILCS 5/7-12

    • In Illinois entrapment is an affirmative defense when law enforcement (or an agent of law enforcement) incites or induces someone to commit a crime the person was not predisposed to commit. 

      • If a law enforcement officer is merely offering an opportunity to commit a crime, that is not entrapment

    • For example:

      • If an undercover police officer is posing as a drug dealer offering to sell drugs, anyone who decides to attempt to purchase from the officer can not claim entrapment

      • If an undercover police officer or confidential informal is posing as a drug dealer and approaches an individual who otherwise was not interested and repeatedly pressures a person who was not looking to buy drugs, after initial refusals, by pleading, nagging, exploiting personal relationships, and the person eventually agrees only because of persistent inducement, that is entrapment

  • Necessity - 720 ILCS 5/7-13

    • A necessity defense may be argued if someone commits a criminal act, but the offense is justifiable, by a reasonable person standard, that the action in question is necessary to avoid an injury to themselves, or another, if that criminal act may result in a lesser injury.

  • Passion in Mitigation of a Criminal Act

    • In Illinois you can argue “the heat of passion” to negate the mental state of premeditation. Notably, passion is not a complete affirmative defense, and can only be used to negate or mitigate a charge utilizing premeditation. This is most famously the element that reduces first degree murder to second degree murder. This is successfully argued by showing that you acted under sudden, intense emotion (rage, terror, panic, etc.), that was triggered by legally recognized serious provocation, that there was no “cooling off” period, and the provocation caused the passionate state and the crime followed from it.