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What are Embezzlement Defense Strategies?

- Posted on 09/09/21

If you’re facing embezzlement charges, you should take it very seriously. It’s unsettling to be facing criminal charges, but when you find the right attorney, they can offer tremendous assistance. In addition to psychological support, there are several tactics an experienced attorney can use when they are defending you against these charges.

What Is Embezzlement? 

In order to understand the defense strategies to embezzlement, it’s essential to know some basic information about the crime. Embezzlement is defined as theft or fraud committed by a person who is in in a position of trust. There are four elements to an embezzlement charge: 

  • There must have been a fiduciary relationship between the two parties. In other words, one of the parties must rely on the other, as there must be a position of financial trust regarding management of their assets.
  • The defendant acquired the property because of the relationship 
  • The defendant took ownership of the property or transferred it to someone else
  • The defendant acted intentionally 

What Are Common Defenses to Embezzlement Charges? 

Absence Of Intent

One of the primary elements of an embezzlement charge is the intent to defraud someone by taking money or property that you aren’t entitled to. If you didn’t intend to defraud anyone – for example, you thought you were permitted to use money from a company bank account – this is a solid defense against this charge. However, it’s important to note that ignorance of the law is not a valid defense to criminal charges. There’s a fine line between a lack of intent and ignorance of the law, so this is something you should discuss with an experienced attorney. 

Entrapment

Entrapment occurs when the government coerces a person into committing a crime that they would never have committed otherwise. For example, if a law enforcement official approached you and introduced the idea of embezzling money from your company’s bank account, this can be raised as a defense. Entrapment is an affirmative defense. This means the defendant is responsible for proving that entrapment occurred. In addition to proving that you were approached by law enforcement, you must also prove that you were not ready and willing to commit the crime had they not approached you. Finally, you must present evidence that law enforcement did more than just provide you with the opportunity – they persuaded you or coerced you to commit the crime.

Duress 

If you were under duress at the time that you embezzled the funds or property, this could help you avoid a conviction. Duress occurs if someone threatened or used force against you to make you embezzle money or property. 

Insufficient Evidence 

Sometimes, the prosecution just simply doesn’t have enough evidence that a person committed embezzlement. If you haven’t raised an affirmative defense, the prosecutor is responsible for proving each element of the crime beyond a reasonable doubt. 

Incapacity

While this is a rare defense strategy, it can be applicable in some cases. If you’re raising the defense of incapacity, you’re telling the court that you were incapacitated when you committed the crime. For example, right before you took the money from your company’s account, you took medication that affected your judgement, and you didn’t realize what you were doing. This is different than an insanity defense. This defense is a challenging one and is unlikely to be successful against embezzlement charges. 

Take These Charges Seriously

Embezzlement charges are serious, so knowing some of the defenses to this crime can be very helpful. If you find yourself facing these charges, talking to an experienced white collar criminal defense lawyer is a great place to start.