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.
Subscribe to:
Posts (Atom)