One critical argument a Denver criminal defense lawyer can make, besides technical arguments like exclusion of the evidence based on lack of probable cause, is that the prosecution failed to prove each of the elements of the case. The elements of each case is different obviously. The Denver criminal defense lawyer in a DUI case will probably be arguing about whether the driver was in a condition to safely operate the car. In a murder case, maybe there will be a contest as to whether "that defendant" actually committed the crime. That will allow the Denver criminal defense lawyer to argue an alibi, or a mistaken identity. But basically the elements of all the crimes can be classed into a few different categories.
The one I want to talk about is states of mind. No, the government cannot make it a crime to think something. That would be against the First Amendment. But that's not really what states of mind are about. For example, everybody would agree that it's a lot worse to wait for someone at home, then bludgeon them to death with a blunt object than to kill somebody in a knifefight. Yes, both crimes are murder. The person killed somebody and they shouldn't have. Yes, both crimes are bad. However, we as a society should make a distinction between these two things. The only real distinction here is what the person was thinking in killing them. So as hard as it may be to figure out what somebody was thinking when they committed murder, it is still important and necessary for that to be a crime element.
The states of mind go all the way down from intentional down to negligent. One reason I was thinking about this post is because of the Reno air crash. Some people have asked me if there could be criminal convictions for that. The answer is probably no, and it comes back to states of mind. In a few cases, you can be criminally convicted for being negligent. But those cases are exceptional and usually regulatory crimes (i.e. there has to be a regulation specifically in place that someone knew about). Otherwise the lowest state of mind would be recklessness. You would have to argue that the people who run the show were reckless in allowing the old aircraft to fly, or reckless in having the stands so close to the action. Since that would be very hard to prove, it is almost certainly a better case for a civil action. In a civil action, the plaintiffs can get money for proving basic negligence.
Monday, September 26, 2011
Friday, September 23, 2011
Denver criminal defense lawyer / right to free speech
The right to free speech is a little bit of a different right than the other rights I've talked about here, like your right to remain silent or your right to a Denver criminal defense lawyer. At the same time, it's in the First Amendment, so obviously it's the most important, right? Well, sort of. Generally your right to free speech lets you say anything you want. You can tell a cop to shove it (though that's probably not smart), you can criticize the president, you can say racist stuff, and none of it is a crime. No matter how nasty the stuff you say is, generally your Denver criminal defense lawyer will be able to argue that your right to speak is protected by the First Amendment, and you'll be off scot-free. The law you're convicted by is probably actually not even allowed to exist.
There are a couple of reasons why the government can make speech against the law. A lot of them apply to civil litigation. In some cases if you say something inaccurate and damaging, you can get sued. But since this is a Denver criminal defense lawyer blog, we'll only talk about the criminal applications. Basically there are two reasons that speech can be a crime. The first is for either a call to violent action or a threat of violent action. If you speak at a Klan rally where everyone has guns, and you scream "let's go kill some black people," that is a call to violent action. But it can't be a vague call to action. You have to know the people you are calling to action are actually going to listen, and you have to know they are capable of doing it. So writing a manifesto about overthrowing the U.S. government would be OK.
The second is a little weird. It's called a breach of the peace. In some cases, the stuff you say will be apparently so annoying that it will actually cause violent action. That's a breach of the peace. Why it's the fault of the guy who said the annoying or offensive thing that the other guy punched him is unclear to me, but I don't make the law. The Supreme Court does by interpreting the constitution. So there you have it. Mostly your right to speak is protected, except in a few cases where it's a crime.
There are a couple of reasons why the government can make speech against the law. A lot of them apply to civil litigation. In some cases if you say something inaccurate and damaging, you can get sued. But since this is a Denver criminal defense lawyer blog, we'll only talk about the criminal applications. Basically there are two reasons that speech can be a crime. The first is for either a call to violent action or a threat of violent action. If you speak at a Klan rally where everyone has guns, and you scream "let's go kill some black people," that is a call to violent action. But it can't be a vague call to action. You have to know the people you are calling to action are actually going to listen, and you have to know they are capable of doing it. So writing a manifesto about overthrowing the U.S. government would be OK.
The second is a little weird. It's called a breach of the peace. In some cases, the stuff you say will be apparently so annoying that it will actually cause violent action. That's a breach of the peace. Why it's the fault of the guy who said the annoying or offensive thing that the other guy punched him is unclear to me, but I don't make the law. The Supreme Court does by interpreting the constitution. So there you have it. Mostly your right to speak is protected, except in a few cases where it's a crime.
Thursday, September 22, 2011
Denver criminal defense lawyer / regulatory crimes
On common misconception I run into a lot as a Denver criminal defense lawyer is that once you are stopped by a police officer, you're totally at their mercy. Sure it is true that you can't control the encounter. The cop is going to do whatever he wants at that time. But you can do a lot to influence your case. As I've said earlier, the exclusionary rule is a crucial weapon for Denver criminal defense lawyers. But if you consent to a search, the exclusionary rule is totally useless. That's why you have to clearly renounce consent when dealing with police officers.
The specific thing I'm talking about here is the difference between crimes and regulatory offenses. Nobody really cares about the difference, it is basically a technicality. But it is very important in terms of searches and consent. Basically a regulatory offense is a ticket. Anything like a busted tail-light, broken windshield or the like is not a crime. The cop can write you a ticket then and there. It's probably not necessary to call a Denver criminal defense lawyer. At the same time, a regulatory offense is not the same as a crime like a DUI.
If you are pulled over for something like a busted tail light, make sure you know your situation. The tail light is not a reason to arrest you. It is a reason to write you a ticket. That means if you get the feeling the cop is trying to stall and get consent to search, be clear with him. Ask if he's going to write you a ticket for the regulatory issue. Once he does that, ask if you are free to go. At that point, he can arrest you, or search your car, but without probable cause for the search and arrest, the evidence cannot be used against you in court.
The specific thing I'm talking about here is the difference between crimes and regulatory offenses. Nobody really cares about the difference, it is basically a technicality. But it is very important in terms of searches and consent. Basically a regulatory offense is a ticket. Anything like a busted tail-light, broken windshield or the like is not a crime. The cop can write you a ticket then and there. It's probably not necessary to call a Denver criminal defense lawyer. At the same time, a regulatory offense is not the same as a crime like a DUI.
If you are pulled over for something like a busted tail light, make sure you know your situation. The tail light is not a reason to arrest you. It is a reason to write you a ticket. That means if you get the feeling the cop is trying to stall and get consent to search, be clear with him. Ask if he's going to write you a ticket for the regulatory issue. Once he does that, ask if you are free to go. At that point, he can arrest you, or search your car, but without probable cause for the search and arrest, the evidence cannot be used against you in court.
Wednesday, September 21, 2011
Denver criminal defense lawyer / right not to testify
If you are accused of a crime, you have a number of rights. One of them is the right to an attorney. If you have seen lawyer movies, you know that you also have a right "to remain silent." Any Denver criminal defense lawyer will also tell you this right has two parts. Basically, you don't have to talk to the police. You also don't have to talk in court. Of course, it's your choice to exercise this right, and with your consent, the police may interrogate you. Any defendant should consult a Denver criminal defense lawyer before deciding whether to speak to the police or testify in court.
Another thing that makes this right more complicated is statements to other people. If you go tell your friends or relatives about your case, they can be subpoenaed to testify about what you told them. But isn't this out of court statements that are being introduced to prove what was stated? That's the definition of hearsay, right? Yes, it is hearsay. However, it is still allowed as evidence to prove your guilt. That's because incriminating statements are allowed. The reason for this is that you would not make a statement that proved your guilt just for fun, would you? You wouldn't lie and say "I'm guilty?" Maybe if you were under threat from the mob or something, but why wouldn't they keep threatening you and make you say it at trial? The result is, you should only talk to you Denver criminal defense lawyer and nobody else about your case.
In a total reverse of the above right, defendants also have the right to testify in their own favor.
You can speak in your own defense. However, a lot of times a defendant will not want to do this. That's because prosecutors are good at cross-examining defendants to make them look guilty. If the defendant gets crossed up and mis-speaks, it may look like a lie. Therefore, even if he's not guilty, a lot of times the accused will not testify.
Another thing that makes this right more complicated is statements to other people. If you go tell your friends or relatives about your case, they can be subpoenaed to testify about what you told them. But isn't this out of court statements that are being introduced to prove what was stated? That's the definition of hearsay, right? Yes, it is hearsay. However, it is still allowed as evidence to prove your guilt. That's because incriminating statements are allowed. The reason for this is that you would not make a statement that proved your guilt just for fun, would you? You wouldn't lie and say "I'm guilty?" Maybe if you were under threat from the mob or something, but why wouldn't they keep threatening you and make you say it at trial? The result is, you should only talk to you Denver criminal defense lawyer and nobody else about your case.
In a total reverse of the above right, defendants also have the right to testify in their own favor.
You can speak in your own defense. However, a lot of times a defendant will not want to do this. That's because prosecutors are good at cross-examining defendants to make them look guilty. If the defendant gets crossed up and mis-speaks, it may look like a lie. Therefore, even if he's not guilty, a lot of times the accused will not testify.
Tuesday, September 20, 2011
Denver criminal defense lawyer / hearsay
A common objection Denver criminal defense lawyers will make is that something is hearsay. It's something that also comes up a lot in movies and books about lawyers. So what is hearsay? Is that just lawyerly mumbo jumbo? Well, it's not exactly the world's most complicated thing. Basically, all this is is a out of court statement introduced in court to prove the thing that was said.
The most common context for hearsay is a witness repeating something that was said outside of court. If you hear someone say "I was shot by a tall, brown haired man in a red jacket," you may remember that and you may think that was the truth. But if you are called into court to testify about this, you won't be able to talk about the statement that was made out of court. The defendant's Denver criminal defense lawyer will object, and the judge will tell you to stick to what you personally know.
Why do we not allow people to testify about things that were said out of court? There are a couple of reasons. First, one of the defendant's rights is to have his Denver criminal defense lawyer cross examine the witness. If the witness doesn't come to court and say what he saw, but someone else does, the truth of the statement can't be evaluated by cross examination. You can cross examine the person who heard the statement about the guy in the red jacket with brown hair. You can evaluate whether he heard that for real, or whether he's making it up. But you can't evaluate the initial statement.
The other issue that's nearly as important is we'd hate our trials to turn in to a massive game of telephone. If you allowed someone who heard something to relay his recollection of the out of court statement, would you take it another step further and let someone relay their recollection of the third party? Basically it would never end. May as well cut it off at the start.
The most common context for hearsay is a witness repeating something that was said outside of court. If you hear someone say "I was shot by a tall, brown haired man in a red jacket," you may remember that and you may think that was the truth. But if you are called into court to testify about this, you won't be able to talk about the statement that was made out of court. The defendant's Denver criminal defense lawyer will object, and the judge will tell you to stick to what you personally know.
Why do we not allow people to testify about things that were said out of court? There are a couple of reasons. First, one of the defendant's rights is to have his Denver criminal defense lawyer cross examine the witness. If the witness doesn't come to court and say what he saw, but someone else does, the truth of the statement can't be evaluated by cross examination. You can cross examine the person who heard the statement about the guy in the red jacket with brown hair. You can evaluate whether he heard that for real, or whether he's making it up. But you can't evaluate the initial statement.
The other issue that's nearly as important is we'd hate our trials to turn in to a massive game of telephone. If you allowed someone who heard something to relay his recollection of the out of court statement, would you take it another step further and let someone relay their recollection of the third party? Basically it would never end. May as well cut it off at the start.
Monday, September 19, 2011
Denver criminal defense lawyer / objections
In a lot of lawyer TV shows, the defense attorneys will make a big deal out of objecting. "Objection, your honor!" Then there will be much hand waiving and screaming about how the judge's ruling is a horrible injustice. In real life, your Denver criminal defense lawyer may make some objections at your trial. He also may make no objections at all. But one thing he should never do is yell at the judge hysterically. That's because the point of an objection isn't really to persuade the judge. It has a couple of other purposes, but a lawyer isn't going to win the trial in an argument over an objection.
In a perfectly run trial, there will be no objections at all. The evidence that needs to be excluded will be knocked out in pre-trial hearings. The defense attorney will get a chance to object. The judge will hear the reasons for these objections, and rule on them. That way, both the prosecutor and the Denver criminal defense lawyer can put on their cases in front of the jury without interruptions for objections.
Of course, this doesn't always work out. Sometimes a prosecutor will forget to disclose something. Sometimes he witheld it in order to ambush the Denver criminal defense lawyer. Who knows why. In other cases, a witness will stray off track and say something that's not allowed. That could be something that he doesn't have personal knowledge of. It could be a statement that happened out of court (that is hearsay). In that case, the defense attorney needs to object. But the objection isn't going to be some sort of hysterical argument about how it's an injustice. Instead, a good lawyer will find the point of objection, say "objection," state the ground and that will be it. If the judge says overruled, so be it. If the judge says granted, good. If the judge asks for more, the lawyer better be ready for that.
The reason for not going crazy when the judge overrules an objection is because the objections are just as much done for the benefit of the defendant on appeal as they are to win the trial. If the judge allows evidence that should not have been allowed, but there is no objection, the error is considered not preserved. That means on appeal the defendant must meet a much higher standard than if there had been an objection. That's because the courts want to create an incentive for the lawyers to force the trial judges to do their jobs. In short, objections are just as much about making a complete record for appeal as they are about winning the trial.
In a perfectly run trial, there will be no objections at all. The evidence that needs to be excluded will be knocked out in pre-trial hearings. The defense attorney will get a chance to object. The judge will hear the reasons for these objections, and rule on them. That way, both the prosecutor and the Denver criminal defense lawyer can put on their cases in front of the jury without interruptions for objections.
Of course, this doesn't always work out. Sometimes a prosecutor will forget to disclose something. Sometimes he witheld it in order to ambush the Denver criminal defense lawyer. Who knows why. In other cases, a witness will stray off track and say something that's not allowed. That could be something that he doesn't have personal knowledge of. It could be a statement that happened out of court (that is hearsay). In that case, the defense attorney needs to object. But the objection isn't going to be some sort of hysterical argument about how it's an injustice. Instead, a good lawyer will find the point of objection, say "objection," state the ground and that will be it. If the judge says overruled, so be it. If the judge says granted, good. If the judge asks for more, the lawyer better be ready for that.
The reason for not going crazy when the judge overrules an objection is because the objections are just as much done for the benefit of the defendant on appeal as they are to win the trial. If the judge allows evidence that should not have been allowed, but there is no objection, the error is considered not preserved. That means on appeal the defendant must meet a much higher standard than if there had been an objection. That's because the courts want to create an incentive for the lawyers to force the trial judges to do their jobs. In short, objections are just as much about making a complete record for appeal as they are about winning the trial.
Friday, September 16, 2011
Denver criminal defense lawyer / the 8th Amendment
On this blog I've talked about a few different constitutional provisions that your Denver criminal defense lawyer might use in an effort to help your case. There is the right to have every element of your case proven beyond a reasonable doubt. There is also the Fourth Amendment, which means the police need a warrant and probable cause to search you. Otherwise the evidence cannot be introduced at trial. In this post I'm going to talk about one right that your Denver criminal defense lawyer will never use in your case. That is the 8th Amendment's rule against cruel and unusual punishment.
Even if nobody can really be certain what the Founding Fathers meant when they created an amendment, we can try. Based on the time of the Founding, we know that there were a few pretty nasty punishment practices. Tarring and feathering, which was basically just a slow way to die. You didn't die because of some direct mechanism like a needle or electric chair. You died because the tar clogged your pores and made it so you couldn't sweat. Probably pretty damn painful. Drawing and quartering was a classic method of execution. That meant you got sliced up and four horses pulled your body apart. These are barbaric, and we wouldn't tolerate them even if there was no constitution.
In fact, basically the only punishment back then was death. The idea of putting bad people in one place didn't really get traction until the middle of the 19th century. So what can we glean from cruel and unusual punishment as far as putting people in prison? Basically, the Supreme Court says nothing. A bunch of people have tried to challenge three strikes laws which put folks in prison for life for doing stuff like stealing golf clubs. That didn't work. The Supreme Court said basically a state can put people in prison for doing anything. One judge said it might be cruel and unusual to give somebody life in prison for a parking ticket. Key word there is "might." So it might even be OK too.
Otherwise, the Supreme Court has said there are a few reasons it's not OK to execute a criminal. No state can execute people under 18, for example. No state can execute somebody who did something other than murder (Louisiana thought child rape was a capital offense, but the Supreme Court said no). You also can't execute people who are mentally retarded. The definition of mentally retarded is up for some debate, but most of the people in the cases have intelligence approximately equal to a seven year old. Even that might not be enough to get you acquitted, since Texas executed a few murderers who still believe in Santa Claus.
So basically, if you aren't accused of a capital offense, the 8th Amendment does nothing for you (until we start locking people up for life for parking tickets, that is). Why will your Denver criminal defense lawyer probably never use this as a defense? Well, it doesn't really matter how bad the crime is. The state of Colorado does not really execute people. Since the death penalty was reinstated in 1977, Colorado has executed one person, in 1997. I didn't look up the case, but I'd be willing to bet he waived some appeals, or did a particularly incredibly heinous crime. That means unless you want to die, you probably won't be facing the death penalty in Colorado (you might end up on death row, but that's really just a wing of a prison in Canon City, not a place where people are actually executed). And if you are on death row, well, this probably isn';t the best place to be researching your case. Try Westlaw.
Even if nobody can really be certain what the Founding Fathers meant when they created an amendment, we can try. Based on the time of the Founding, we know that there were a few pretty nasty punishment practices. Tarring and feathering, which was basically just a slow way to die. You didn't die because of some direct mechanism like a needle or electric chair. You died because the tar clogged your pores and made it so you couldn't sweat. Probably pretty damn painful. Drawing and quartering was a classic method of execution. That meant you got sliced up and four horses pulled your body apart. These are barbaric, and we wouldn't tolerate them even if there was no constitution.
In fact, basically the only punishment back then was death. The idea of putting bad people in one place didn't really get traction until the middle of the 19th century. So what can we glean from cruel and unusual punishment as far as putting people in prison? Basically, the Supreme Court says nothing. A bunch of people have tried to challenge three strikes laws which put folks in prison for life for doing stuff like stealing golf clubs. That didn't work. The Supreme Court said basically a state can put people in prison for doing anything. One judge said it might be cruel and unusual to give somebody life in prison for a parking ticket. Key word there is "might." So it might even be OK too.
Otherwise, the Supreme Court has said there are a few reasons it's not OK to execute a criminal. No state can execute people under 18, for example. No state can execute somebody who did something other than murder (Louisiana thought child rape was a capital offense, but the Supreme Court said no). You also can't execute people who are mentally retarded. The definition of mentally retarded is up for some debate, but most of the people in the cases have intelligence approximately equal to a seven year old. Even that might not be enough to get you acquitted, since Texas executed a few murderers who still believe in Santa Claus.
So basically, if you aren't accused of a capital offense, the 8th Amendment does nothing for you (until we start locking people up for life for parking tickets, that is). Why will your Denver criminal defense lawyer probably never use this as a defense? Well, it doesn't really matter how bad the crime is. The state of Colorado does not really execute people. Since the death penalty was reinstated in 1977, Colorado has executed one person, in 1997. I didn't look up the case, but I'd be willing to bet he waived some appeals, or did a particularly incredibly heinous crime. That means unless you want to die, you probably won't be facing the death penalty in Colorado (you might end up on death row, but that's really just a wing of a prison in Canon City, not a place where people are actually executed). And if you are on death row, well, this probably isn';t the best place to be researching your case. Try Westlaw.
Thursday, September 15, 2011
Denver criminal defense lawyer / jurisdiction
A tool that's not typically useful for a Denver criminal defense lawyer is jurisdiction. However, when it is useful, it can be basically fatal for the case against you. In that respect, it's sort of like the statute of limitations, which is rarely used but works every time. Jurisdiction is an element of every offense, which means it has to be proven every time. So even though it is rarely at issue, it is used in every case. Let's break it down.
Basically jurisdiction is simply the ability of a court to make rulings on certain things. It really comes down to two different things: territory and subject matter. Territory basically means a court (and district attorney) govern a certain area. If you commit a crime in Denver County, then get charged by the Arapahoe County district attorney, your Denver criminal defense lawyer can move to dismiss. The Arapahoe County court does not have jurisdiction to hear the case. That means it would have to be dismissed. The Denver district attorney can still charge the case. But sometimes different counties have different standards. or sometimes the statute of limitations has run out. That means you've successfully beaten the rap.
The other jurisdiction thing is subject matter. This generally applies to federal court, and a lot of times in civil litigation. Federal courts can only hear civil cases that are over 75,000 in value, and between citizens of different states. That means if it turns out one citizen is trying to sue another citizen of the same state in federal court, the case can get thrown out.
Jurisdiction is such a powerful defense it is not limited to any time in the proceeding. That means even if the conviction happens, if your Denver criminal defense lawyer is dumb and didn't notice the jurisdiction defense before the trial, it can still get thrown out. That's because without jurisdiction, the whole case is deemed totally null. None of the court's actions were valid at all.
Basically jurisdiction is simply the ability of a court to make rulings on certain things. It really comes down to two different things: territory and subject matter. Territory basically means a court (and district attorney) govern a certain area. If you commit a crime in Denver County, then get charged by the Arapahoe County district attorney, your Denver criminal defense lawyer can move to dismiss. The Arapahoe County court does not have jurisdiction to hear the case. That means it would have to be dismissed. The Denver district attorney can still charge the case. But sometimes different counties have different standards. or sometimes the statute of limitations has run out. That means you've successfully beaten the rap.
The other jurisdiction thing is subject matter. This generally applies to federal court, and a lot of times in civil litigation. Federal courts can only hear civil cases that are over 75,000 in value, and between citizens of different states. That means if it turns out one citizen is trying to sue another citizen of the same state in federal court, the case can get thrown out.
Jurisdiction is such a powerful defense it is not limited to any time in the proceeding. That means even if the conviction happens, if your Denver criminal defense lawyer is dumb and didn't notice the jurisdiction defense before the trial, it can still get thrown out. That's because without jurisdiction, the whole case is deemed totally null. None of the court's actions were valid at all.
Monday, September 12, 2011
Denver criminal defense lawyer / criminalizing classes
I know I normally don't do news here on the Denver criminal defense lawyer blog, since I prefer to stick to stuff that's a little bit more practical. There was an interesting snippet in my RSS feed this morning, though. In the Post, I saw that the Supreme Court declined to hear a constitutional challenge to the City of Boulder's anti-camping ordinance. The American Civil Liberties Union (ACLU) had challenged it, arguing that it penalized a "class" of people. It is not legal for a case to punish a class of people--laws must criminalize specific acts. Although this is not something that a Denver criminal defense lawyer will come up against often in practice, it is still an important principle in criminal law practice.
Basically, it is a due process violation to make a law that punishes being part of a class of people. A class is really just a group where you can't leave the group or decide not to be part of it. So if the government made a law that no homosexuals could be on the 16th street mall between five and nine pm, the defendants' Denver criminal defense lawyer would have a strong argument that the law was unconstitutional. On the other hand, if a law criminalizes acts, a group of people predisposed to those acts is not a class that is being criminalized. For example, laws prohibiting heroin use do not criminalize the class of people "heroin addicts." Yes, heroin addicts are more likely to be punished under the law. But it is still an act that is being criminalized, not a class. Similarly, folks who use peyote as part of religious ceremonies are not having their class punished. The act of eating peyote is not considered an essential part of the ceremony (many people strongly disagree with this, but that's what the U.S. Supreme Court said). The homeless ordinance falls somewhere in the middle. You can see that poor people are basically the only people who will be busted for permitless camping. That's particularly true in the middle of the winter. On the other hand, the City isn't saying "you can't be homeless." It's at least on its face a rule against a specific act. So there are arguments on both sides.
Basically, it is a due process violation to make a law that punishes being part of a class of people. A class is really just a group where you can't leave the group or decide not to be part of it. So if the government made a law that no homosexuals could be on the 16th street mall between five and nine pm, the defendants' Denver criminal defense lawyer would have a strong argument that the law was unconstitutional. On the other hand, if a law criminalizes acts, a group of people predisposed to those acts is not a class that is being criminalized. For example, laws prohibiting heroin use do not criminalize the class of people "heroin addicts." Yes, heroin addicts are more likely to be punished under the law. But it is still an act that is being criminalized, not a class. Similarly, folks who use peyote as part of religious ceremonies are not having their class punished. The act of eating peyote is not considered an essential part of the ceremony (many people strongly disagree with this, but that's what the U.S. Supreme Court said). The homeless ordinance falls somewhere in the middle. You can see that poor people are basically the only people who will be busted for permitless camping. That's particularly true in the middle of the winter. On the other hand, the City isn't saying "you can't be homeless." It's at least on its face a rule against a specific act. So there are arguments on both sides.
Friday, September 9, 2011
Denver criminal defense lawyer / crime elements
One of the strongest parts of the criminal justice system favoring the defendant (and there are few of these) is the requirement that the prosecution basically do all the work. That means your Denver criminal defense lawyer does not need to do anything at all to get an acquittal. After the prosecution is done presenting its case, he can simply stand up and say "we don't believe the prosecution proved its case beyond a reasonable doubt. Because the state did not meet its burden of proof, the jury must acquit."
To understand why this can be such a powerful weapon in the hands of a Denver criminal defense lawyer, you need to understand a little bit about how the legislature defines crimes. Every crime is composed of a number of elements. As an example, here are the elements of drunk driving offenses in Colorado. Basically, these are parts of a crime. Some of them are fairly easy to prove, such as that the offense occurred in a certain county, or a certain act was committed by a particular person. But others are incredibly difficult to prove. For example, first degree murder has an element that the killing occurred with "malice aforethought" at least traditionally. Getting a jury to understand what that means can be hard enough. Then the prosecutor has to prove what the defendant was thinking, doubtless over the Denver criminal defense lawyer's strenuous objections.
The key with elements is that every single one of them must be proven beyond a reasonable doubt. If there are eight things the prosecution has to prove, no matter how stone cold the proof on seven of them, the tiniest smidgen of reasonable doubt can result in an acquittal. That's why the prosecution has to check all the boxes. Meanwhile, the key for the defense attorney is to focus on the smallest areas where he has a chance of showing reasonable doubt.
To understand why this can be such a powerful weapon in the hands of a Denver criminal defense lawyer, you need to understand a little bit about how the legislature defines crimes. Every crime is composed of a number of elements. As an example, here are the elements of drunk driving offenses in Colorado. Basically, these are parts of a crime. Some of them are fairly easy to prove, such as that the offense occurred in a certain county, or a certain act was committed by a particular person. But others are incredibly difficult to prove. For example, first degree murder has an element that the killing occurred with "malice aforethought" at least traditionally. Getting a jury to understand what that means can be hard enough. Then the prosecutor has to prove what the defendant was thinking, doubtless over the Denver criminal defense lawyer's strenuous objections.
The key with elements is that every single one of them must be proven beyond a reasonable doubt. If there are eight things the prosecution has to prove, no matter how stone cold the proof on seven of them, the tiniest smidgen of reasonable doubt can result in an acquittal. That's why the prosecution has to check all the boxes. Meanwhile, the key for the defense attorney is to focus on the smallest areas where he has a chance of showing reasonable doubt.
Tuesday, September 6, 2011
Denver criminal defense lawyer / statutes of limitations
When I was in school training to be a Denver criminal defense lawyer, our civil procedure professor talked about statutes of limitations. He always abbreviated it as SoL, because if you didn't sue before the SoL was over, you were shit out of luck. For criminal defendants, it means you're pretty darn lucky.
A statute of limitations is basically a limit on how long the state has to prosecute crimes. In many cases, it will be meaningless, because the prosecutors usually are right on top of things. However, in other cases it goes right up there with the exclusionary rule and the very high burden of proof in criminal cases as a key tool for a Denver criminal defense lawyer.
The statutes of limitations serve several purposes. First, over a period of time the evidence for criminal cases gets worse. Witnesses forget things. Police departments dispose of evidence. Footprints get washed away, DNA decays and fingerprints fade. The idea that you could even accurately identify who committed a relatively minor crime five years ago is pretty silly. So the statute of limitations protects against inaccurate prosecution and convictions. Second, prosecutors could choose to prosecute many, many acts selectively. Without the statute of limitations, there would never be certainty as to when a case could no longer be prosecuted.
In terms of how they work, statutes of limitations are fairly complicated. In reality you'll need a Denver criminal defense lawyer to help decipher them. However, I can provide a few pointers on how they work. Generally, the statute of limitations runs from the date the crime was committed. It stops when the crime is charged. That means if the statute of limitations is two years, the prosecution has that much time to file an indictment or information. Even if the final conviction takes more than that amount of time, statute of limitations is not a defense once the crime is charged.
In certain cases, the statute can be "tolled." That means it will stop running, so it will actually go longer than the period of time prescribed in the statute. Sometimes the statute will be tolled until the prosecution finds out about the case. That's particularly the case when the defendant actively concealed the crime.
Generally, the more serious the crime, the longer the statute of limitations. In most states, murder has no statute of limitations. The limitations period for minor felonies or misdemeanors is two years or less. Other crimes are on the continuum somewhere in between. As you can see, statutes of limitations are fairly complex, so consult a lawyer if you have questions about how it might help your case.
A statute of limitations is basically a limit on how long the state has to prosecute crimes. In many cases, it will be meaningless, because the prosecutors usually are right on top of things. However, in other cases it goes right up there with the exclusionary rule and the very high burden of proof in criminal cases as a key tool for a Denver criminal defense lawyer.
The statutes of limitations serve several purposes. First, over a period of time the evidence for criminal cases gets worse. Witnesses forget things. Police departments dispose of evidence. Footprints get washed away, DNA decays and fingerprints fade. The idea that you could even accurately identify who committed a relatively minor crime five years ago is pretty silly. So the statute of limitations protects against inaccurate prosecution and convictions. Second, prosecutors could choose to prosecute many, many acts selectively. Without the statute of limitations, there would never be certainty as to when a case could no longer be prosecuted.
In terms of how they work, statutes of limitations are fairly complicated. In reality you'll need a Denver criminal defense lawyer to help decipher them. However, I can provide a few pointers on how they work. Generally, the statute of limitations runs from the date the crime was committed. It stops when the crime is charged. That means if the statute of limitations is two years, the prosecution has that much time to file an indictment or information. Even if the final conviction takes more than that amount of time, statute of limitations is not a defense once the crime is charged.
In certain cases, the statute can be "tolled." That means it will stop running, so it will actually go longer than the period of time prescribed in the statute. Sometimes the statute will be tolled until the prosecution finds out about the case. That's particularly the case when the defendant actively concealed the crime.
Generally, the more serious the crime, the longer the statute of limitations. In most states, murder has no statute of limitations. The limitations period for minor felonies or misdemeanors is two years or less. Other crimes are on the continuum somewhere in between. As you can see, statutes of limitations are fairly complex, so consult a lawyer if you have questions about how it might help your case.
Friday, September 2, 2011
Denver criminal defense lawyer / truth in advertising
Yesterday I mentioned the different ways you can be charged in the criminal justice system. Not only is this a necessary procedure, the right to know the charges against you isch a key right, like the right to a jury trial and the right to an attorney. That's because if you don't know what you are charged with and why going into the trial, your Denver criminal defense lawyer won't be able to properly defend you against those charges. Though this right isn't super complicated, it does have a few interesting ins and outs that you probably should know about.
First, like most crucial constitutional rights, it can be waived. If after talking to a Denver criminal defense lawyer, you decide a plea bargain is in your best interest, that's fine. You can even plead guilty to stuff you weren't originally charged with. What you don't want to do is plead guilty, then come back and claimed you weren't charged with the offenses for which you were convicted. First, you waived those rights. Second, you were apprised of those charges before the plea, which the courts consider good enough.
Next, simply telling you what statutes you're charged with a crime under is probably not enough to satisfy the right to be charged. After all, if somebody served you with papers stating you were accused of public intoxication, where would you even begin? How in the world would your Denver criminal defense lawyer go about preparing your case? Would you have any idea even what to contest? As such, the charging document needs to include some information about the facts that make up the case against you, along with the statute you violated. Otherwise the charge could be considered too vague, and any conviction might be thrown out.
Finally, even if you are charged with one thing, it is possibly to be convicted of another. Generally this is called a "lesser included offense." That occurs when all the elements or components of one crime are included within another. So first degree murder is the same as second degree murder, except with "malice." That means if a defendant is charged with second degree murder, he is assumed to be on notice to defend first degree murder. He should know if he only attacks the "malice" part, he's basically conceding guilt on second degree. So the charging requirement is satisfied.
First, like most crucial constitutional rights, it can be waived. If after talking to a Denver criminal defense lawyer, you decide a plea bargain is in your best interest, that's fine. You can even plead guilty to stuff you weren't originally charged with. What you don't want to do is plead guilty, then come back and claimed you weren't charged with the offenses for which you were convicted. First, you waived those rights. Second, you were apprised of those charges before the plea, which the courts consider good enough.
Next, simply telling you what statutes you're charged with a crime under is probably not enough to satisfy the right to be charged. After all, if somebody served you with papers stating you were accused of public intoxication, where would you even begin? How in the world would your Denver criminal defense lawyer go about preparing your case? Would you have any idea even what to contest? As such, the charging document needs to include some information about the facts that make up the case against you, along with the statute you violated. Otherwise the charge could be considered too vague, and any conviction might be thrown out.
Finally, even if you are charged with one thing, it is possibly to be convicted of another. Generally this is called a "lesser included offense." That occurs when all the elements or components of one crime are included within another. So first degree murder is the same as second degree murder, except with "malice." That means if a defendant is charged with second degree murder, he is assumed to be on notice to defend first degree murder. He should know if he only attacks the "malice" part, he's basically conceding guilt on second degree. So the charging requirement is satisfied.
Thursday, September 1, 2011
Denver criminal defense lawyer / taxis on patrol
I heard a colleague who's also a Denver criminal defense lawyer complaining about the taxis on patrol program. He was saying that he passed a cab, the cab followed him and taped him, and as a result he got a citation. The implication here was that basically the taxi program was turning things into a police state where our rights were not protected. As such, any Denver criminal defense lawyer should be against such a program. I'm not so sure I agree. I'm the first to defend measures that protect civil liberties. But after some research, I'm not so sure the taxis program does any such thing.
Basically what taxis on patrol does is give taxis access to the police radio system. That gives them an avenue to report crimes. That's basically it. They can't really arrest people (unless they want to do a citizen's arrest like everybody else). There is no real indication that they have been given any special equipment. I found no verification that these taxis had cameras or anything of the sort. Just a radio hookup, so they can report criminal activity. Isn't this more like giving an 8 year old an honorary sheriff's badge and telling him to report anything he sees? And shouldn't taxis call the police when they see bad stuff happen anyway (just like ordinary citizens, heh)?
The only thing I see in this program is a sort of silly bid for publicity by both the cops and taxi companies. The police always are looking for ways to appear tough on crime. Sure, the crime rate has been sliding for nearly two decades now. Even so, people are still afraid of crime, and like measures that make the police look tough. In exchange for linking with this program, YellowCab and the others get their names out there in a positive light. If one of these cabs catches a huge fugitive or dangerous person, then that will be even greater publicity. This benefit really accrues simply from letting their employees do what every citizen should do: report bad stuff that's happening on the streets. So no, I don't think the taxis on patrol program is much of a civil liberties issue.
Basically what taxis on patrol does is give taxis access to the police radio system. That gives them an avenue to report crimes. That's basically it. They can't really arrest people (unless they want to do a citizen's arrest like everybody else). There is no real indication that they have been given any special equipment. I found no verification that these taxis had cameras or anything of the sort. Just a radio hookup, so they can report criminal activity. Isn't this more like giving an 8 year old an honorary sheriff's badge and telling him to report anything he sees? And shouldn't taxis call the police when they see bad stuff happen anyway (just like ordinary citizens, heh)?
The only thing I see in this program is a sort of silly bid for publicity by both the cops and taxi companies. The police always are looking for ways to appear tough on crime. Sure, the crime rate has been sliding for nearly two decades now. Even so, people are still afraid of crime, and like measures that make the police look tough. In exchange for linking with this program, YellowCab and the others get their names out there in a positive light. If one of these cabs catches a huge fugitive or dangerous person, then that will be even greater publicity. This benefit really accrues simply from letting their employees do what every citizen should do: report bad stuff that's happening on the streets. So no, I don't think the taxis on patrol program is much of a civil liberties issue.
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