Notice and Pretrial Defenses

Facing federal charges in Houston is never easy. A conviction could lead to hefty fines and incarceration in federal prison among other consequences. While it is true that federal crimes are often defensible, you are never guaranteed success when you go to trial. With the right defense, however, you could improve your chances of a favorable outcome.

In federal court, certain defenses require that you provide notice to the prosecution before you rely on them. Others require successful pretrial motions before a defense becomes an option. In addition to a motion to suppress evidence illegally obtained, these defenses are known as notice and pretrial defenses. To learn more about whether these defenses could apply in your case, schedule a free consultation with attorney Doug Murphy right away.


One of the most popular examples of a notice defense in federal court is the use of an alibi. An alibi involves a claim that you were somewhere other than the place the criminal act occurred at the time the crime was committed. If you establish you were not present for the commission of the federal crime, your alibi could serve as a viable defense.

You do not have the burden of proving your alibi. However, you must provide notice of your intent to use an alibi defense at the government's request. This requirement is designed to avoid delays or allegations of unfair surprise.


The insanity defense is not nearly as common as you might believe from watching procedural cop dramas. That said, it is a viable defense under certain circumstances. The insanity defense could be available when a defendant “as a result of a severe mental disease or defect, was unable to appreciate either the nature and quality or the wrongfulness of his acts.”

To successfully use an insanity defense, the defendant must prove the existence of the mental disease or defect through clear and convincing evidence. This defense is only allowed following certain notice requirements, however. The Federal Rules of Criminal Procedure require a defendant to notify the government of their intention to use this defense.

Public Authority

The public authority defense is one of the least common defenses used at the federal trial level. This defense only applies to individuals who commit a crime after being engaged by a government official to participate in covert activity. If the defendant can show that they only committed the offense at the behest of the official, they could avoid a conviction at trial.

However, this defense is not available unless the defendant provides the government with notice that they intend to use it. This notice may be required to file under seal if the identity of the government agent is sensitive.

Entrapment by Estoppel

The defense of entrapment by estoppel is somewhat similar to public authority. It differs in that it applies when a government official assures the defendant that the conduct they engaged in was legal. This defense is only viable if the defendant acted reasonably in relying on the advice of the government official. This defense is not available if they knew or should have known their actions were illegal. To use the entrapment by estoppel defense, a defendant must provide the government with notice of its intent prior to trial.

Outrageous Government Conduct

The outrageous government conduct defense can be used when an agent of the government commits actions that are so outrageous that they violate the due process rights of the defendant. Due to the lack of fundamental fairness, justice prevents the federal government from obtaining a conviction.

Successful use of this defense could prevent the government from pursuing charges entirely. Because of this, a defendant may only make use of the defense in a pretrial motion. If they fail to do so, the defense is waived.

Vindictive Prosecution

The Due Process Clause of the United States Constitution provides important rights to every defendant. These rights are violated if a federal prosecutor brings a criminal charge against a person as a form of retaliation. This defense only applies when the prosecutor's actions are entirely unreasonable and reflected the intent to punish the defendant for exercising some protected right. A defendant can only raise this defense if they file a pretrial motion first.

Selective Prosecution

Federal prosecutors have a degree of discretion on when to bring criminal charges. However, their charging decisions cannot be arbitrary or based on discrimination of a protected class like race or religion. If the prosecutor brings charges for purposes barred by the Constitution, the court could dismiss the case entirely.

The defendant using a selective prosecution defense must provide the government with notice before using it. It is the defendant's burden to show that the prosecution as selective, as there is a presumption that every federal charge is brought in good faith.


Venue is an important consideration in all federal criminal cases. According to the Constitution of the United States, a federal defendant must be tried in the state where the crime occurred. This guarantee is also written into the Federal Rules of Criminal Procedure. If a criminal act occurs outside of any state, Congress will determine the appropriate venue.

The prosecutor bears the burden of establishing that the trial is being held in the state where the crime occurred. If the prosecution fails to prove this by the preponderance of the evidence, dismissal is warranted.

A defendant must make any venue challenges early on in the case. The failure to do so will waive the defense permanently. However, if the prosecutor fails to meet their burden an objection could still be raised after the close of the government's case at trial.

Craft a Winning Defense with a Houston Federal Crimes Lawyer

Many of these defenses only apply under rare circumstances. Due to their complexity, it is vital that you discuss these options with an experienced attorney. Pursuing these defenses on your own could be risky given the strict pre-trial requirements they include. If you are facing federal criminal charges in Houston, schedule a free consultation with board-certified criminal defense lawyer Doug Murphy and the Doug Murphy Law Firm, P.C.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.