Articles Posted in Criminal Defense

Innocence and guilt are determined in courtrooms across the country every day. While the burden of proof is on the prosecution in any criminal trial, the defense strategy offered during a trial can certainly do a lot to dismantle a prosecutor’s presentation. Whatever defense you wind up with, you want your attorney to put forth a calculated foundation that challenges the theories delivered by the prosecution. Certainly, the best-case scenario has the defense providing an alternate theory of the case that will decimate any chance of a jury finding guilt beyond a reasonable doubt. An experienced criminal defense attorney can help you to weigh four basic defenses: perfect, imperfect, affirmative, or denial.  

A Perfect Defense

A perfect defense is looking for an acquittal on all charges. It could be based on something like a strong alibi or similar factual matters or on legal statutes, such as an expired statute of limitations that negates the state’s ability to prosecute in the first place. Whatever the specifics, a perfect defense is designed to provide a path to acquittal. 

An Imperfect Defense

Sometimes, attorneys are simply unable to deny any connection between a defendant and the crime, so they seek to reduce the severity of the charges. In other words, the defendant’s attorneys argue that, while the defendant was a participant in criminal activities, the crimes do not rise to the level of the charges. That might mean seeking manslaughter charges instead of first-degree murder charges, for example. This imperfect defense will not result in an acquittal but aims to achieve a lesser sentence. 

An Affirmative Defense

Sometimes, a defendant asserts some sort of justification—temporary insanity, for example—that must be credibly demonstrated in order to explain the event in question.  A couple of other commonly used affirmative defenses include self-defense and entrapment. An affirmative defense, in other words, acknowledges the defendant’s involvement in the crime but provides a legal excuse for the actions.

A Denial Defense

The denial defense challenges that there is no proof beyond a reasonable doubt related to each and every element in a case. These elements, at the very least, will include confirmation of criminal activity and of criminal intent and of the concurrence of the two. If a crime requires a negative outcome (not all do), causation and harm also must be proven. Finally, in some cases, attendant circumstances may be required (for example, characteristics of the victim in a hate crime). The defense team can either brawl to demonstrate that these elements are not in evidence or simply wait for the prosecution to fail in their ability to provide proof beyond a reasonable doubt. Continue reading

If you have been found guilty of violating crimes in California, you will undergo a presentence interview before you ever get to the sentencing phase of the process. This is basically an investigative interview with a probation officer who will be tasked with making recommendations related to your sentencing, so making a good impression is probably a good idea. The report will be confidential, with only your counsel and the prosecutor receiving a copy. 

Topics of the Interview

The interview will cover a broad set of topics and might also include: 

• Family background;
• Previous education;
• Ties you may have to the community;
• Employment history;
• Criminal history;
• Associations with known criminals;
• Financial stability;
• Addiction issues;
• Physical health issues;
• Attitude accepting or declining responsibility for current offense(s);
• Mental health concerns.

Records of Interest

Your interviewer will likely review documentation related to your personal history, including things like:

• School transcripts;
• Providers of substance abuse and/or counseling treatment;
• Records related to employment;
• Records related to financial status;
• Records related to military service;
• Records of previous criminal activity;
• Documentation of physical and/or mental health issues;
• Documents related to your trial, including transcripts, pleas, and other reports.

Further Investigation

The probation officer will continue to look for information about you by interviewing others who may have relevant data, including individuals from law enforcement, the prosecutor involved in your case, your employer, family, and friends. A home visit will be scheduled if possible, during which your living conditions will be assessed.

Can I Refuse to Answer Questions?

While you absolutely have the right to decline to answer some questions, it could result in the probation officer simply seeking the requested information from another source. If your attorney has advised against sharing certain information, or if you just resolve not to answer of your own volition, you can count on that being reported to the court with a notation stating the reason for your lack of cooperation. There is always the possibility that refusing to cooperate could have a negative impact on the sentencing recommendation.

After the Interview

Once the report is written, it will be given to both the prosecutor and defense attorney, either of whom may object to anything contained in the document. The recommended sentencing guidelines that are based on the information in the report may be challenged, as well. Those objections, along with the probation officer’s responses, will then be included in an addendum to the report, which is what the judge will receive (as well as both attorneys). 

If the judge sentences you to prison, the report will follow you to the Bureau of Prisons, but it remains confidential and cannot be shared outside this tiny circle. Continue reading

Let’s say you pleaded guilty—or even a no-contest—and have since thought about it and decided that you made the wrong move with that plea. Maybe it was part of a plea agreement, and you were so frightened by the thought of a long prison sentence that you copped to lesser charges just to avoid that scenario. But with time, you just cannot stomach the idea of saying you did something when you are innocent.  Even though a no-contest plea does not necessarily admit to guilt, it does result in legal penalties. In your case, the paperwork’s been signed, so are you stuck in a deal you do not like? Maybe, maybe not. 

California Law

According to California Penal Code 1018, there are circumstances under which a defendant may withdraw a plea. It is not simply something you can choose willy-nilly, though. The law requires you to show good cause in order to file a motion to withdraw your plea. That means one of the following must be true:

You agreed to the plea before you had a lawyer to advise you;

• You had a lawyer but believe they were incompetent/ineffective;
• When you agreed to the deal, you did not understand the potential consequences;
• Law enforcement and/or prosecutors failed to advise you of your constitutional rights;
• You agreed to the plea deal, but it was presented in a language other than your native tongue, and you did not completely understand what you were doing.

What is the Timeline and Process?

As a defendant, you can feasibly back out of the plea arrangement any time before you have actually been sentenced or within six months of the judgment being entered. (Under limited circumstances, you can change your plea after being convicted and sentenced, but it is a much more time-consuming and complicated process!) Prior to sentencing, your attorney will simply file the paperwork and then attend a hearing with you to try to demonstrate to the court that you have good cause to change your plea. Things can go one of two ways from there:

• The judge can deny the motion and will sentence you based on the charges you pleaded guilty to; OR
• The judge will grant the motion, and you will go back to the beginning, where you plead not guilty to charges at the arraignment. (Obviously, any benefits you might have reaped by agreeing to the deal are forfeited at this point).

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Rumor has it that attorneys in some states hope for jury nullification at the end of a trial, knowing that it would be nearly impossible to get a “not guilty” verdict based on the facts of the case.  What is jury nullification, and what makes it so attractive in some cases? 

Defining Jury Nullification

Jury veto, juror pardon, or conscientious acquittal: sometimes, juries understand that a defendant may be guilty while opting to reject the evidence in the case because they believe the result of a guilty verdict would be unjust. Sometimes juries may be attempting to send a message about issues larger than the case at hand and believe they have the right to send that message through their verdict. In other situations, they may simply believe that the specifics of the particular case they are hearing warrant a not-guilty verdict in spite of a belief that the law was likely broken by the defendant. Here in California, our Supreme Court has taken that right away from juries, fearful of runaway juries who, in defending the conscience of the community at large, snub the laws on the books.

Historical Jury Nullifications

Jury nullification has been around for centuries! Fugitive Slave Laws were undermined when people who harbored escaped slaves were found to be “not guilty” by juries, despite stacks of evidence pointing to guilt. Alcohol prohibition laws were minimized when juries declined to convict guilty parties who’d violated laws related to alcohol control, a move in support of community values. More recently, Dr. Jack Kevorkian was found “not guilty” of murder three times when his involvement in “mercy killings” was relatively clear. In other situations, juries who believed drug laws were much too harsh have been unwilling to punish minor drug offenders in multiple states. When the enforcement of written laws is rejected, eventually laws around certain matters are simply unenforceable.

Is Jury Nullification Legal Elsewhere? 

While not necessarily encouraged, jury nullification is completely legal across the country. Sometimes prosecutors and/or judges will warn juries that jury nullification would be a relinquishment of their duty, but it is nonetheless a power that juries have in most of the United States. These verdicts cannot be overturned, and jurors cannot be punished for their verdict. Supreme Court Justice Sonia Sotomayor, one of the most powerful legal minds in the world, publicly affirmed that she believes there is a place for jury nullification in our justice system. Whatever one’s thoughts on the issue, one study divulges that in 19% of cases, juries acquit when a judge would have leaned toward conviction, and roughly one-fifth of these acquittals were a result of jury nullification. 

How Do Jurors Know About this Option?

Since the late 1800’s courts have been reluctant to inform juries of jury nullification, let alone encourage it. In fact, in most cases, judges tell juries that it is, indeed, their duty to apply the law precisely as it is provided to them, even if they disagree with the law. In fact, some courts have determined that a juror who intends to nullify the law may be removed when reported by another juror. Though defense teams may wish for jury nullification, they are usually not allowed to propose it in their closing arguments. Unless a juror already knows about it, it likely will not happen. Nonetheless, it is something that dangles as an option in many courtrooms across the country. Continue reading