A good burglary defense will include some defenses that apply to all criminal charges and others that are specific to the crime of burglary. As with any crime, the accused can challenge the police procedures followed, such as conducting an illegal search of the accused individual's person and property. The defense also might challenge the evidence of the identity of the accused. There also are defenses that are specific to burglary, the most important of which is challenging the claim that the accused entered a building intending to commit a crime.
The traditional common law definition of burglary required the accused to break and enter the house of another in the night time with the intent to commit a felony, but several parts of this definition are no longer required in most jurisdictions. First, a burglary no longer is restricted to the night time and can occur at any time of day. Second, the definition no longer is restricted to dwellings and can apply even to buildings where no one lives. Finally, it is no longer necessary to break into the premises, and most jurisdictions consider it burglary to enter a building with an intent to commit a crime, even if the accused is invited to enter.
The key elements of burglary that remain in all jurisdictions are entry into a building with intent to commit a crime. Typically, a burglar intends to steal something, but it also is burglary to enter a building with the intent to commit another crime, such as assaulting and causing injury to someone inside. The crime of burglary does not require the intended crime to be successfully completed.
A specific burglary defense will attempt to negate, or rule out, one of the elements of the crime. In traditional common law, it was a defense to say that the structure was not a dwelling but was uninhabited. It also was a defense to say the entry did not occur at night time. The accused also could raise the defense that the person in the dwelling invited the accused to enter. These particular defenses, however, are not available under the broader definition of burglary more common today.
Even under the modern definition, though, it is a burglary defense to show that the accused did not actually enter the premises. Another burglary defense is to show that the accused did not intend to commit a crime when he or she entered. In addition, most jurisdictions still punish burglary at night and in a dwelling more severely, so it is a defense against a more severe form of burglary to argue that the entry was during a time of day when it was not dark or that the building was uninhabited. It also lessens the severity of the charge to show the property value of the items stolen was minimal.
