How Do Prosecutors Prove Intent in Burglary Cases?

A burglary takes place even if the intended crime doesn't.

By , Attorney · UC Berkeley School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law
Updated September 21, 2022

In order to convict a person of burglary, the prosecutor must prove that the defendant entered a building or structure without permission and with the intent to commit a crime inside. Without proof of intent to commit a crime, a person who unlawfully enters a building or structure can likely be convicted of trespass or some other crime, but not burglary. Intent goes to the defendant's frame of mind. Short of a defendant's outright confession, how do prosecutors get into a defendant's head at the time of the crime?

This article will discuss the different ways prosecutors can prove intent in burglary cases and provide examples.

What Are the Elements of Burglary?

Although state laws define burglary somewhat differently, the basic elements include:

  • the defendant entered a building
  • without permission, and
  • with intent to commit a crime inside.

The first two elements can be established by showing an actual entry by the defendant and no consent by the building owner or tenant. But the final element—intent to commit a crime—can be a bit more difficult to prove, especially when the defendant doesn't complete the intended crime. Say the police catch a person who's starting to climb into another's home through a window. If the person intended to break open a safe once inside, that person committed burglary the same as had they accomplished their mission.

What Evidence Is Needed to Prove Intent in a Burglary Case?

Prosecutors have several different ways in which to prove the defendant's criminal intent in a burglary case.


Sometimes defendants will confess to police (or others) that they entered a building intending to steal or for some other nefarious purpose. For example, police respond to an alarm and find a teenager inside a home. The teenager blurts out, "I wasn't going to hurt anyone. I was just looking for something to sell." The teen just admitted to entering the building with the intent to commit a crime, theft. A jury would likely find the teenager guilty of burglary.

Circumstantial Evidence

Other times, a prosecutor must rely on circumstantial evidence by arguing the defendant's actions are really consistent only with an intent to steal or commit some other crime. Suppose a man breaks into a woman's house in the middle of the night, and she finds him in her closet rifling through her things. The man and the woman have never met before. Her door was locked and he pried the door open with a screwdriver. Most jurors and judges would have a hard time imagining that defendant had any intention—other than the intent to commit a crime—when he entered the woman's house.

Prior Burglary Convictions

In some cases, evidence of a defendant's prior burglary convictions may be admissible to prove intent in the current case. However, even if allowed, the court must carefully tell the jury how to use the evidence. The jury cannot use the prior crimes to decide that defendant is generally a bad person and thus committed a burglary on this occasion. The evidence can only be used to decide whether the defendant committed the crime or had the intent to commit a crime. For example, if a defendant argues that he was high on drugs and went into a garage to lay down and sleep off his high, the evidence of a prior garage burglary is relevant to show that defendant entered the garage with the intent to steal. However, if the defendant argues that he was not the person seen going into the garage, the court may be less likely to allow the evidence of the prior conviction because the jury has to determine the identity of the burglar, not the burglar's intent.

Obtaining Legal Assistance

If you're charged with burglary or any other crime, you should talk to a local criminal defense attorney. An attorney can explain the charges and the criminal process, protect your rights, and work to obtain the best possible outcome.

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