Criminal Defense

Common Defense To Criminal Charges
We hear about criminal activity often, yet the defenses are by and large left out of any discussions in the public forum. There are many defenses to criminal charges. Some of the most common defenses that are used include:

• Self defense
  – This is perhaps the most commonly heard defense to any criminal charge. Typically, in order for this defense to work, one must reasonably believe that force (including deadly force) is necessary to prevent death or serious bodily injury, or to prevent a felony from occurring (murder, rape, robbery etc.). The latter also falls under a category called defense of others. Typically, there is no duty to retreat in such situations, but it can be used as a factor in determining just how reasonable the force was.
• Defense of property
  – Force (including deadly force) can be used in the defense of property, however, it is very important to remember that the property involved must be “real” property (home, barn, detached garage – any kind of property that is not transportable). In essence, you cannot shoot somebody who is trying to steal your car unless your life is in danger. However, when you are in your home and there is a burglary in progress, deadly force is a defense that is available (this principal applies to other real property, such as barns, as well).
• Compulsion
  – This defense is available when a person is forced to commit a crime and a reasonable person would not have resisted such force. This defense is not available, typically, if a person recklessly places himself or herself in a situation that would cause such duress.
• Mistake of fact
  – As stated above, this defense is not available for strict liability crimes such as statutory rape. However, a person that has been charged with a crime that does not involve strict liability is allowed a certain amount of leeway in regard to the circumstances necessitating such an action. For example, when a person is observing what appears to be an assault and battery between two people play boxing on a street corner, a defense of mistake of fact is available to the perpetrator.
• Mistake of law
  – When one wants to claim that a mistake of law was made, there must be a reasonable reliance on some kind of interpretation of the law. In other words, a person cannot claim that the law was interpreted to them by a friend (for example), there must be an official statement of the law (such as a grant of permission from an administrative agency) that the perpetrator is relying on. (this distinction is very important, because ignorance of the law is not a defense to breaking it but a reasonable mistake is).
• Consent
  – This is a common defense in rape cases. There are several caveats to the consent defense however. For example, such consent cannot be gained with threats of force/retaliation against the victim, the consent must come at the volition of the free will of the alleged victim. Another good example of where a defense of consent might come in handy is when there is an altercation that both parties consent to. For example, when two people are in a boxing match, one of the parties cannot later claim that an assault and battery took place. The story changes completely when a dangerous/deadly weapon is used. Typically, one cannot claim consent when someone dies and a deadly weapon enters into the dual.
• Entrapment
  – As mentioned previously, our law enforcement officers are, for the most part, heroes that put their lives on the line all day everyday. Crime does not take a day off and neither to our brave law enforcement officials (with a few exceptions). That being said, character flaws enter into every profession, including law enforcement, and there are times when some officers seek to get people to commit crimes. The defense of entrapment arises when a law enforcement officer induces a person to commit a crime that was not otherwise predisposed to do so. The standard that is used to measure whether or not entrapment took place is usually objective (i.e. the standard is not based on one’s propensity to commit the crime, but whether or not the state improperly used its power). Also keep in mind that this defense is not available if bodily injury results.
• Appeal
  – Anyone who has been convicted on a crime has the right to appeal that conviction to a higher court. The appellate process is meant to review certain aspects of the case in order to determine whether or not a reversible error was made at the trial (first) level. When an appeal is made, the defendant argues that his or her conviction was based on legal mistakes, and that these mistakes affected the jury’s decision. If the appellate body (such as a state supreme court) finds that reversible error was made, the case can be thrown out or the case can be sent back to the lower court for retrial.The typical appeals process involves written briefs (written arguments) by both the defense and the prosecution. It is in reading these briefs that the higher court decides whether or not it will hear oral arguments. If the court decides that it will hear oral arguments, both sides are allowed to make arguments before a panel of judges. During this oral argument, new evidence generally cannot be presented and the appellate body considers only what is put on the record at the trial level. Although it may take months for an appeal to be considered, but the defendant must generally make the intent to appeal known quite soon after conviction.
• Expungement
  – Expungement is a term used for the removal of an arrest and/or conviction from someone’s criminal record (as if it never happened). What typically happens in a case like this is that the file is sealed (which means that no one can look at it). A legal principal that is striking in its similarity is called a plea in abeyance. When one accepts a plea in abeyance, there are certain conditions that must be fulfilled in a certain amount of time after the plea. Once those conditions are met, the conviction is removed from the record of the convict. The law on this matter varies, for example, some states do not allow the removal of felony convictions or sex offenses. An expungement can be helpful when one is seeking things such as employment and housing. If you feel that you are eligible for expungement, please call 1LAW for a free consultation.
• Probation
  – Probation means that one is allowed to retain his or her freedom – with certain conditions. Conditions can include home confinement, travel restrictions, and even restricting the people that one can associate with. Violation of one’s conditions of probation can carry severe consequences which can include: prison sentence, fines, community service, additional fines, court ordered rehabilitation and probation revocation. Defenses include factual innocence, insufficient evidence, and proving completion of probation conditions. If you have any questions regarding probation, please consult with a 1LAW attorney.
• Investigation
  – At 1LAW, we will provide the best representation possible, and this includes a thorough investigation prior to trial that will prevent surprise at trial. This investigation may consist of the use of private investigators who have access to tools that can uncover information and evidence that can be used in your defense. Investigation of the crime scene is another part of our pre trial investigation. Investigation of the crime scene may consist of: analysis of crime scene photos/videos, analysis of sketches/diagrams/measurements, follow up of leads, law enforcement interviews, interviews of other civic employees (i.e. ambulance drivers) witness interviews, witness location victim interviews, forensic evidence testing, polygraph tests, background investigation, location of other wrongly accused individuals, and public record searches. Our pretrial investigation will be thorough and the best appropriate methods will be used in order to achieve the results that will best achieve justice.