How Do Prosecutors Prove Intent in Burglary Cases?

Burglary requires entering a structure with the intent to commit a crime inside. Circumstantial evidence often provides the proof of the defendant's intent.

In order to convict a person of burglary, the prosecutor must prove that the defendant entered a building or structure without permission with the intent commit a crime inside. For example, if a homeless person goes into a school to find shelter on a cold night, the person has not committed burglary because he or she does not intend to commit a crime. The person could be convicted of trespassing (going onto someone else’s property without permission), but not burglary. However, if the defendant intended to take a shower- and thereby steal water and soap – then the defendant entered the building with the intent to commit theft and could be convicted of burglary.

For more information on burglary, see Differences Between Theft and Burglary and Home Invasions. There are different ways in which a prosecutor can prove the defendant’s criminal intent.

Criminal Intent

The criminal intent requirement for burglary varies from state to state. In some states, the prosecution must prove the defendant intended to commit a felony or theft. A felony is a crime punishable by incarceration in state prison. In these states, a person who enters a building without permission in order to commit some other minor offense, such as misdemeanor prostitution, has not committed burglary. In other states, the intent to commit any crime will do.

The intended crime does not have to occur. It is enough that the person entered the building with the intent to commit a crime. For example, if a person breaks into an office intending to assault a worker who is there late at night, but gets frightened off by a security guard before committing the assault, the person could still be convicted of burglary.


Oftentimes, 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.” This is an admission that the teen entered the building in order to commit theft, and a jury would likely find the teenager guilty of burglary.

Circumstantial Evidence

Other times, the defendant's actions are really consistent only with an intent to steal or commit some other crime. For example, suppose a man breaks into a woman’s house in the middle of the night and is discovered by the woman 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 other intention – other than the intent to commit a crime – when he entered the woman’s house.

Could Prior Burglaries Be Used to Prove Intent?

State law varies on whether prior burglaries can be used to prove a defendant’s criminal intent. If the defendant has previously been convicted of burglary, then the prosecutor may, in some states, introduce evidence of the prior burglary to show that defendant had criminal intent during the current burglary as well. The theory behind allowing such evidence to prove intent is that a law-abiding defendant who has been prosecuted and convicted for burglary in the past will be very careful in the future. A person who had already been punished for burglary would know better than to go into a building or structure without permission and would only do so if he or she were up to no good.

For example, suppose a defendant was arrested in 2011 for going into a neighbor’s garage and stealing tools. Three years later, the same defendant is arrested after he is seen going into a different neighbor’s garage. He is found with some of the neighbor’s tools in his truck. At trial, the prosecutor may be able to introduce evidence that defendant committed a prior similar burglary to show that defendant had the intent to steal tools when he entered the garage.

In other states, evidence of prior burglaries cannot be introduced. Even in states that allow such evidence, courts must carefully tell the jury how to use the evidence. The jury cannot use the evidence to decide that defendant is generally a bad person. The evidence can only be used to decide whether the defendant committed the crime or had the intent to steal. 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, then evidence of a prior garage burglary is relevant to show that defendant entered the garage with the intent to steal. However, if defendant argues that he was not the person seen going into the garage, then 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.

Sometimes, evidence of a prior burglary conviction will be admitted only if the prior crime was uniquely similar to the charged offense in the way it was carried out. It will be admitted in order to prove the criminal's identity. For example, suppose an assailant neatly cut a hole in a window above the door, entered and left the glass disc on the kitchen table, and then helped himself to food in the frig, stacking the dishes neatly in the sink before sneaking upstairs to commit a sexual assault. The defendant on trial, captured a block away from the crime, claims that he wasn't the assailant. A judge might admit evidence that this defendant has a prior burglary and assault conviction that involved the same bizarre behavior, in order to prove that the defendant was the assailant in the current case. Contrast this scenario with that of a defendant who was previously convicted of breaking into a store to commit theft, and later arrested for breaking into a home to commit an assault. The two crimes may be too dissimilar to allow the prosecutor to use the prior conviction as evidence.

Obtaining Legal Assistance

If you are charged with burglary, or any other crime, you should talk to a local criminal defense attorney. An attorney can help you understand the charges against you and the law in your state. With help from an attorney, you can protect your rights and, hopefully, obtain the best possible outcome in your case.

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