Theft Defenses

Criminal defense strategies may vary depending on the type of theft and the circumstances surrounding the criminal case. Thus, it is essential to understand the nuances of this crime and the legal defenses that apply to your case.

Millions of theft offenses occur yearly all around the world. In the United States alone, the FBI reported 5,086,096 larceny thefts nationwide in 2019. This violation of criminal law varies from shoplifting to theft by embezzlement to grand larceny. Thus, individuals often seek commonly used defenses applying to this type of case.

This article aims to shed light on some of the possible defenses to a criminal theft charge.

What Are the Types of Theft?

Theft crimes are often classified based on the value of the stolen property. The different types of theft are as follows:

  • Misdemeanor or petty theft (such as shoplifting)
  • Felony theft (such as grand theft or embezzlement)

Petty theft often includes stealing personal property of lesser value. At the same time, felony theft or first-degree theft involves taking high-value items or more significant sums of money.

A disclaimer is that classification depends on the value of the stolen property. Each state or jurisdiction may have varying thresholds for petty theft or felony theft. Due to the varying degree of property values, criminal penalties also vary. Often, misdemeanor theft only requires community service.

For example, a typical first-time theft sentence in Maryland may require the person to perform community service, make restitution, and complete a diversion program. After a period of probation, the charge would be dismissed. But for grand theft or other felony theft, offenders may face jail time. A theft conviction could also have a lasting impact on their criminal record.

Common Defenses in Theft Cases

Various legal defenses can be used in theft cases. Some of these defenses apply in cases where the property was taken by mistake or with a lack of intent.

Claim of Right or Ownership of Property

An individual accused of stealing property may have a valid defense rooted in mistake of fact. This applies in particular if they can establish that they believed the property taken was theirs. It also applies if the person thought they had a valid claim to the property. Although a somewhat straightforward defense, it's not as simple as claiming, "I thought it was mine." Often, defendants will need to provide evidence supporting their claim.


It may be possible to successfully defend theft charges if a defendant can establish intoxication during the theft. This is important because intoxication can negate the intent required to build the case of larceny. Note that "larceny" is defined as the unlawful taking of personal property with the intent to deprive the owner of it permanently.

Thus, the intent to permanently deprive the owner of personal property is crucial to proving this crime. Conversely, lack of intent is a valid defense proven by evidence presented by the criminal defense lawyer on behalf of the defendant.

Consider a scenario where this defense could be used. For instance, say you were at a bar and mistakenly took someone else's leather jacket after having a few glasses of whiskey. When you took it, you thought it was yours. But you were too drunk to notice that it was the other man's coat sitting right next to you. Although this could be a valid defense, it is important to remember that you still must provide proof of intoxication. Also, remember that public intoxication can also be a criminal offense.

Return of Property

People may wonder if returning stolen property can provide a defense against theft or prevent criminal charges. Producing stolen property generally does not offer protection against a charge of theft. However, replacing the property can make you appear more sympathetic to a prosecutor for purposes of a possible plea deal. Returning the stolen items may also help with reducing the penalties.

A viable defense exists if a defendant can establish they intended to return the property taken at the time they took the property. If you forget to return something you borrow, you may also be able to defend against theft charges on that basis.


The defense of entrapment applies when a person was induced to commit the crime. This means that the idea or intent to steal came from another person called the "entrapping person." Oftentimes, they are police officers or law enforcement authorities who are operating undercover. The officer lured the person into committing the theft, and that victim claimed entrapment.

Here, the court may also implicate the law enforcement officers—especially if evidence shows that they enticed the person to commit the crime.

Seek Legal Advice From a Criminal Defense Attorney

Accidental acts like unintentional taking can lead to serious charges. It could leave a long-lasting impact on the alleged theft offender.

If someone accuses you or your loved ones of theft crimes, it is best to consult with a lawyer for legal advice. They can give you a better understanding of your rights. They will also guide you through navigating the intricacies of criminal law.

FindLaw has a directory of theft attorneys in every state. You can find the legal team that will suit your needs. Check it out and find a criminal law office near you.

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