Polygraph machines simultaneously monitor several of a subject's physiological functions—breathing, pulse, blood pressure, perspiration, and skin conductivity—while being questioned. A printout or graph shows exactly when, during the questioning period, physicological responses occurred or changed. The theory underlying a lie detector test is that lying is stressful, and that stress can be measured and recorded on a polygraph machine by monitoring changes to the subject's physiological functions.
There’s more to the polygraph test than the machine itself. The entire procedure can be divided into four basic parts—a pretest, control questions, the test, and a post-test evaluation.
1. Typically, the examiner conducts a pretest a few days or sometimes weeks before the actual test. This pretest allows the examiner to gather information about the subject, test out different questioning techniques, and review the subject’s responses.
2. At the start of the actual test, the examiner may use control questions to test the subject’s physiological responses and compare those responses to those elicited from relevant test questions.
3. The examiner conducts the polygraph test by asking a series of questions and recording the subject's physiological responses to those questions and the answers.
4. After completing the test, the examiner must evaluate the questions, answers, and physiological responses.
It depends on who you ask. The American Polygraph Association cites research results that suggest polygraphs are accurate between 80 to 90% of the time. A different “APA”—the American Psychological Association—argues that polygraph accuracy can’t be measured because the science is theoretical. They state there’s no scientific proof that stress signals that a person is lying.
Again, the answer depends on who you ask. The American Polygraph Association acknowledges that “all things made by man can be defeated.” However, they note that new sophisticated software and recording equipment make it very difficult to “beat” the polygraph. On the flip side, a paper on the American Psychological Association website suggests that various methods can be used to alter polygraph results, including adjusting one’s physical movements, taking drugs, or trying to alter one's physiological responses.
Not usually, and almost never when it comes to using the results as evidence of guilt or innocence. The fact that a defendant took or refused to take a polygraph test also isn’t allowed as evidence.
To be admissible in a case, scientific evidence must be relevant and reliable. Because substantial conflict exists in the scientific community regarding the reliability of polygraph results, most judges won’t allow polygraph results to be admitted as evidence. Courts also limit its use because credibility determinations are for a jury to make (not a machine). (U.S. v. Scheffer, 523 U.S. 303 (1998).)
A few states have outright bans that prohibit the admissibility of polygraph results as evidence. Other states let judges decide on a case-by-case basis. If a party seeks to introduce polygraph evidence for a purpose other than determining the truth of a matter, the judge may allow it. For instance, a judge might allow a subject's answer to a polygraph question for impeachment purposes (to discredit their testimony). Sometimes, a judge may allow the results if both parties agree to it (called a stipulation) or in pretrial or post-trial motions that don't go to a jury.
If you're being investigated in a criminal matter, talk to a criminal defense lawyer before agreeing to take a lie detector test. You can't be forced to take a polygraph test. And often it's in your best interests not to take the test.
]]>The chain of custody shows the path the evidence took from the crime scene (or elsewhere) to the courtroom to ensure it’s what the party says it is and it hasn’t been tampered with. For example, if a prosecutor in a murder case wanted to introduce a knife found at the crime scene, they’d have to establish a chain of custody to prove that it was in fact the knife found at the scene and not some other knife.
The parties at a trial or hearing usually have to establish a chain of custody for the exhibits they want to introduce. Exhibits are tangible objects that are relevant to the facts of a case. Here are a few examples:
Proving that an exhibit is exactly what it purports to be—the actual drugs found on the defendant or the very cellphone stolen from the store—requires proof of who had possession of the exhibit at all times between the time officers seized it and the trial. Because criminal prosecutions typically depend on evidence gathered by police officers, it is prosecutors who generally need to establish a chain of custody.
Let's assume that Hy Immer is on trial for possession of cocaine. To prove Immer guilty, the prosecutor must establish that the substance in Immer's possession was in fact cocaine. The prosecutor offers as evidence the packet of powder that a police officer removed from Immer’s pocket. The prosecutor also offers evidence that scientific testing proved that the powder in question is cocaine.
To establish the chain of custody for the packet, the prosecutor must:
The chain of custody works to ensure the evidence is what it purports to be, has not been tampered with or altered, and has been appropriately handled and tested. Without such measures, judges and juries might base a conviction on planted evidence, inaccurate test results, or an item that was never at the crime scene.
Most often the defense will be in the position of challenging the chain of custody. A typical defense strategy is to attack the sufficiency of the prosecutor’s chain—link by link. The defense might do this by showing an irregularity or discrepancy in the timeline or documentation, or challenging how the item was stored, labeled, or tested. If the defense succeeds in preventing the prosecutor from offering an exhibit into evidence, the judge might rule that the prosecutor has insufficient evidence to allow a case to continue. (That determination rests on how crucial the piece of evidence is to the case.)
Going back to Immer's example, his attorney can challenge each and every step in the seizure-storage-testing-transportation process. If the prosecutor cannot convince the judge that the foundation is adequate, the judge will rule the packet inadmissible and, in all probability, dismiss the case.
]]>
Given the general predisposition in favor of cops, what's a defendant with a legitimate defense to do? One viable option could be in an officer's personnel file.
Police personnel records often contain citizen complaints, internal affairs reports, performance reviews, and disciplinary board findings regarding officer misconduct claims. A criminal defendant might seek out a police officer’s prior disciplinary record to:
While potentially important to a defense strategy, many jurisdictions heavily guard police personnel records, citing officer privacy and safety concerns. Common justifications for maintaining confidentiality include protecting against:
Over time (and after numerous police brutality cases came to light), these policies have slowly started to shift toward shedding light on misconduct records. However, a criminal defendant might need to jump a few hurdles to access such documents.
State laws regarding accessibility to police misconduct records vary considerably. Some jurisdictions make these records generally accessible to criminal defendants, as well as the public. Others limit access only to substantiated claims resulting in certain disciplinary actions (such as firing), while a number of states still deem all such records confidential. And state laws aren’t necessarily the only hurdle. Local agency rules or procedures might also come into play in some jurisdictions.
In states that restrict access, a defense attorney might be able to obtain police disciplinary or other personnel records through a formal discovery request. Once a defendant makes a proper request for the personnel records of an officer-witness, the government (whether the prosecution or a different government agency that has the records) will typically review the files and provide any significant to the defense. Or the government may lawfully refuse to turn over personnel files if there's no basis to believe they're helpful or relevant to the defendant's case.
Fortunately, courts frequently oversee the review process in order to determine whether disclosure of the records would be favorable to the defense. The defense attorney might need to explain to a judge why the disciplinary records are being sought, why the records are important and relevant to the case, and why any exemptions in the law shouldn’t apply.
Access to records relating to potential police misbehavior isn't always limited to criminal defendants. Sometimes the public is entitled to information about police behavior of public concern. But that doesn’t mean it’s always easy to find. Each state and local jurisdiction may have different rules or procedures for requesting this information. Here are some general tips.
Even in a state where most police disciplinary records are public, you will still need to follow the proper procedures. For instance, you’ll likely need to file a data access request from the appropriate government agency that’s in charge of holding the records.
Determining the appropriate government agency can take some research. Try starting with the officer’s current or former employing law enforcement agency (such as a city police department or county sheriff’s office). Give the agency a call or search its website for information on requesting police disciplinary or misconduct records. Other places to search include a state or city police oversight board, an agency internal affairs division, or a state police licensing or disciplinary board.
Carefully review the law and forms before filling out and making your request. State law might prevent the release of certain information until after any pending investigations have concluded. Or the law might allow the agency to deny your request if you didn’t provide sufficient information to identify a specific record, officer, or incident. You could end up losing a filing fee and time if any required information is missing or the request isn't timely.
A few groups and organizations have compiled police misconduct data and created public dashboards. While these databases have limitations, they might prove helpful to your research. Some examples include:
Organizations and agencies may also have tips on how to file data access requests for police misconduct files in your state. For instance, check out:
You can also talk to a lawyer about options for accessing police disciplinary records.
]]>Fingerprint evidence rests on two basic principles:
Police officers use fingerprints to identify defendants by comparing prints found at a crime scene with prints already in government databases. Fingerprinting algorithms used by the FBI have a matching accuracy of 99.6%.
People's fingerprints can be on file for a variety of reasons. For example, people may be fingerprinted when they are arrested or when they begin certain occupations. And it is increasingly popular for parents to ask local police departments or schools to fingerprint their young children, a grim reminder that children who are abducted or are the victims of other heinous crimes often cannot be identified otherwise.
Friction ridges contain rows of sweat pores, and sweat mixed with other body oils and dirt produces fingerprints on smooth surfaces. Fingerprint experts use powders and chemicals to make such prints visible. The visibility of a set of prints depends on the surface from which they're lifted; however, with the help of computer enhancement techniques that can extrapolate a complete pattern from mere fragments, and laser technology that can read otherwise invisible markings, fingerprint experts increasingly can retrieve identifiable prints from most surfaces.
The age of a set of fingerprints is difficult to determine. Therefore, defendants often try to explain away evidence that their fingerprints were found at crime scenes by testifying that they were at the scene and left the prints at a time other than the time of a crime.
To learn more about fingerprints and other evidence, read The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).
]]>Defense investigation methods can be as informal as talking to potential witnesses on the telephone or as formal as serving a cellphone company with a subpoena demanding call logs. One method that’s often effective is in-person interviews of those who know about either the events underlying the charges or the people involved in the case. This includes interviewing even those who might testify for the prosecution.
While witnesses don't belong to either side, a “prosecution witness” refers to someone who may be called to testify by the prosecutor (the government) in a criminal case. These witnesses can be expert or lay (non-expert) witnesses, such as the victim, witnesses to the crime, the arresting police officer, a toxicologist, or a doctor who attended to the victim or conducted an autopsy. Typically, both sides must provide a list of all the witnesses they plan to call to testify in the case.
While it's perfectly legal for defense attorneys and their investigators to interview prosecution witnesses, defendants don’t generally have a right to interview a witness. It's usually up to witnesses and victims to decide whether to talk to the defense before trial. They might not be willing to talk, but a defense attorney or investigator who doesn't ask often doesn't know.
And even though prosecutors might not want their witnesses—including police officers and victims—to talk to the defense, they typically can't stop them (though they may "inform" them that they don't need to consent to an interview).
The defense can gain significant benefits from trying to interview prosecution witnesses rather than relying on their statements. These include the ability to:
A defendant might wonder whether it's worth it to interview a witness who has already given a statement that the prosecution has disclosed. But prosecutors and police officers sometimes omit or misstate information (either intentionally or not). Further, when law enforcement and prosecutors speak to witnesses, they aren't likely to ask questions that could elicit information the defense would like to know. And there might not be a record of all conversations witnesses have had with the other side.
The defense has limited options for trying to interview uncooperative prosecution witnesses before trial. The defense lawyer might hire a private investigator who specializes in finding and interviewing reluctant witnesses. (A defense attorney might be capable of persuading a hesitant witness to talk, but will typically prefer to have someone else try, or at least be present during the conversation—that way the lawyer doesn't have to testify if the witness says something new or inconsistent at trial.)
Private investigators can drive up the cost of a case, but they're often worth the money. For those defendants who can't afford investigators or even attorneys, the court might in some instances (usually serious cases) appoint a free-of-charge investigator. Public defenders' offices typically have investigators who work on various clients' cases, but their workload often limits what they can do.
In some jurisdictions, the defense can serve witnesses with subpoenas that compel them to answer questions at a deposition (an out-of-court session at which the witness may be questioned under oath). Depositions are common in civil cases, but far less frequent in criminal cases: Most jurisdictions don't allow criminal depositions.
Defendants themselves should almost never interview witnesses, particularly victims. Whatever the defendant says to the witness or victim can usually be mentioned at trial. And if the witness tells a different story at trial, the defendant might be forced to testify to controvert it. (The testimony might open the defendant up to difficult questioning and the jury might be inclined to believe the non-defendant witness in a battle of words.)
Furthermore, regardless of the defendant's intent, an alleged victim may interpret any personal contact as a threat, which, if reported to the authorities, can involve big trouble (including, but not limited to, revocation of bail and new criminal charges).
Lastly, a criminal defense lawyer or investigator is likely to ask the most relevant questions and get the most helpful information. As with all criminal law issues, it's best to rely on a good defense attorney's judgment.
If you're facing criminal charges, consult an experienced criminal defense lawyer who can protect your rights and effectively investigate your case. An attorney will also be able to tell you what you should—and shouldn't—do to help. For example, your lawyer may ask you to provide all the information you can possibly think of regarding witnesses, locations, events, and even people who have nice things to say about you (who can be relevant not only at trial but also at potential sentencing).
]]>Defendants are allowed to present evidence of their good character for some reasons, but not others.
For example, evidence of good character isn’t allowed for the purpose of arguing that the defendant committed the crime but shouldn’t be convicted. In that way, the so-called "mercy" rule isn't really about mercy at all, because defendants aren't allowed to use it to ask for leniency or forgiveness.
But defendants can present evidence of good character if it tends to show that they didn't likely commit the alleged crime(s). For example, if the defendant is charged with fraud or embezzlement, they can offer evidence that they’re honest and law-abiding: Such evidence relates to the theory that honest, law-abiding people are less likely to steal money than people without this character trait.
When the defendant wants to present evidence of good character, they normally call character witnesses. A character witness is simply someone who knows the defendant well and testifies about the defendant’s good character. Character witnesses are often family members, friends, and sometimes employers, coworkers, or others.
Though the rules of evidence vary from state to state, a character witness's testimony is usually limited to their opinion of the defendant and knowledge of the defendant's reputation. They might say that in their opinion, the defendant is honest and has a reputation for being truthful, for example.
Like all other evidence, in order to be admissible, character evidence must be based on personal knowledge and be relevant. Character evidence is relevant if it relates to a trait of the defendant’s character that has some connection to the charged crime.
Norman Bates is charged with assaulting Roseanne Fell. Bates calls to the stand a close friend to testify, “In my opinion, Bates is a nonviolent person who wouldn’t hurt a fly.” This kind of character evidence would be allowed because it suggests Bates has a tendency to be peaceful, making it less likely that he assaulted Fell.
But Bates could not call his friend to testify that he is honest or hard-working, because those character traits aren't related to the crime of assault.
Presenting evidence of good character comes with a lot of risks, which is why defendants don’t often take advantage of the mercy rule.
Here are just some of the risks involved:
If the defendant doesn’t offer evidence of his good character, the prosecutor typically can’t offer evidence of his bad character. Evidence rules generally forbid prosecutors from attacking a defendant’s character unless the defendant first “opens the door” by presenting evidence of good character. Character evidence is barred in this situation because it is too harmful. A judge or jury might convict a defendant for being a “bad person,” or might assume that the defendant acted in conformity with his “bad character” during the events in question, even if the evidence of guilt is otherwise weak.
Character Evidence in Sexual Assault Crimes
A perceived increase in sexual assault crimes, such as rape and child molestation, has alarmed legislatures in many states. They believe that those who commit sexual assaults tend to repeat their crimes, and that, especially when the victims are children, the crimes are difficult to prove in court. As a result, many states have created special exceptions to the character evidence rules for sexual assault prosecutions.
The exceptions allow prosecutors to offer evidence that defendants charged with sexual assault or child molestation have committed those crimes in the past. (Many jurisdictions have equivalent rules for domestic violence prosecutions, allowing admission of past domestic violence to prove the charged offenses.)
The exception for past acts of child molestation was a major factor in the highly publicized 2005 trial of late singer Michael Jackson. Jackson was accused of molesting a teenage boy at his Neverland ranch. The judge allowed the prosecutor to offer evidence that he had previously molested a number of other young boys, even though he wasn’t charged with molesting them. The lurid details of the previous accusations consumed many more days of the trial than did the testimony that dealt with the charged crimes. Jackson was nevertheless acquitted of all charges.
Getting Around the Ban on Evidence of Bad Character
Despite the rule barring evidence of a defendant’s bad character when that character hasn’t been put in question, prosecutors routinely argue that “bad person” evidence is relevant for another reason. For example, a judge would probably allow a prosecutor in an assault trial to present evidence that the defendant previously assaulted the same victim. In that situation, a judge would likely rule that the evidence isn’t about the defendant’s character: Instead, it’s evidence that the defendant had a problem with the victim, which tends to show the defendant had intent (and possibly motive) to assault them.
Another non-character theory that prosecutors sometimes use to present evidence of a defendant’s past bad acts is modus operandi, or “M.O.” Under this theory, the prosecutor can offer evidence that the method a defendant used to commit past misdeeds is unique and nearly identical to the method allegedly used to commit the charged crime. Evidence of the prior misconduct is then admissible—not to paint the defendant as a bad person—but to show that the common M.O. points to the defendant as the perpetrator of the charged crime.
]]>
This article will review the differences between state and federal criminal jurisdiction, as well as what happens when one crime can be charged in multiple states or in federal and state court.
Crimes that violate federal law or that involve a national or federal interest can be prosecuted in federal court. For example, federal tax fraud and immigration offenses are crimes that violate federal law. Crimes that involve a national or federal interest include those where:
In some cases, the federal interest is clear, such as seditious conspiracy charges in the January 6th attack on the U.S. Capitol. In others, the connection to interstate commerce (and thus federal jurisdiction) can be slight. Take the example below.
Example: Eight men try to rob a racetrack in Illinois but are thwarted by security guards. In their subsequent prosecution for attempted robbery, they argue that the federal government doesn't have jurisdiction to prosecute them because the alleged crime occurred on state grounds. But because the racetrack's money is federally insured, many of the horses' owners come from out of state, and the track uses several out-of-state services (for betting machines and advertising materials, for example), jurisdiction was properly vested in the U.S. government. (See United States v. Harty, 930 F.2d 1257 (7th Cir. 1991).)
Charges for federal crimes are brought by federal prosecutors, called U.S. Attorneys (or Assistant U.S. Attorneys), and tried in federal court. Federal prosecutors work for the U.S. government, just like state prosecutors work for the state and city prosecutors work for their cities. The title of a federal criminal case will read United States v. the Defendant.
Federal trial courts are divided into districts, with some states having one district and others having two, three, or four districts. For instance, California has four district courts (the Central, Eastern, Northern, and Southern Districts). The name of the federal trial court includes the district, such as the U.S. District Court for the Central District of California. Check out the U.S. Courts website to learn more about how federal courts are organized.
Each state has its own penal or criminal code that defines crimes and their penalties, such as murder, assault, robbery, burglary, DUI, and rape. Most crimes that occur within a state's borders, or within three miles of its coastline, are prosecuted in state court by a state or district attorney. The title of a state court case might be something like the People of the State of New York v. the Defendant or the State of Minnesota v. the Defendant.
State law usually specifies which courts have jurisdiction over which types of cases. In many states, adult felonies and misdemeanors are divided between different courts. Most states also have juvenile courts, which have exclusive jurisdiction over most crimes committed by minors. The names for the kinds of state courts vary from state to state, such as district court, county court, superior court, or municipal court.
Yes, a crime can violate both state and federal law in one of a few ways. For instance, a crime might occur partly on federal land and partly on non-federal land, giving the state and the federal government jurisdiction. Or a crime might violate state law, such as murder, but as soon as the defendant moved the body across state lines, a federal crime was committed. In this situation, a second state might also have jurisdiction. Say the defendant murders a victim in California but dumps the body in Nevada—here the defendant committed crimes in both California and Nevada and under federal law (by crossing state lines).
Yes, a defendant can face prosecution for the same crime in both state and federal court. However, in many instances, one of the jurisdictions will defer to another. For example, the federal government might prosecute a case, instead of a state, where the crime involved a large sex trafficking ring because the federal government has more resources. The deferring government might step in only if the other prosecution fails. Or sometimes both state and federal prosecutors will pursue criminal charges.
In some sense, it seems unfair for a defendant to undergo criminal prosecution more than once for the same alleged offense. After all, doesn't the prohibition against double jeopardy prevent exactly that? Unfortunately for some defendants, the answer is no. The Constitution's Double Jeopardy Clause prevents multiple prosecutions or punishments by the same "sovereign." Successive state and federal prosecutions don't violate the clause because state and federal governments are separate sovereigns.
Example: In 1991, several Los Angeles police officers were involved in the vicious beating of motorist Rodney King. In the state criminal case, the jury acquitted the officers on all but one charge (as to which it hung), sparking the 1992 LA Riots. Months later, a federal grand jury indicted the officers for the same beating under a federal law punishing anyone who, acting under governmental authority, violates another person's federal rights. (18 U.S.C. § 242.) A federal jury ultimately convicted two of the four officers.
Example: Federal authorities charged NFL quarterback Michael Vick for running an interstate dogfighting business. A federal court sentenced him to 23 months in prison. The state of Virginia separately prosecuted Vick for the dogfighting ring. After his federal conviction, while he was still in U.S. custody, he pleaded guilty to a state charge. (The sentence for the state crime was essentially folded into the federal sentence he was serving.)
Usually, any state in which an essential part of a crime has been committed can prosecute the offender—meaning more than one state might have jurisdiction where the crime begins in one state and continues into another.
Some state laws and constitutions address this type of concurrent jurisdiction, but others don't. In most cases, the first-in-time rule applies. When there are competing claims to jurisdiction, the prosecuting attorneys usually get together and try to reach an agreement about who will "go" first. Often, the first court to exercise jurisdiction over the defendant keeps the case to itself—at least for a while. That state's jurisdiction will be exclusive. Any other courts claiming jurisdiction must wait until the case is over or the first court releases its jurisdiction.
And like federal and state prosecutions, having multiple prosecutions in each affected state doesn't violate double jeopardy because each state is a separate "sovereign." (In fact, it's at least theoretically possible that multiple states and the federal government could prosecute a defendant for a single course of conduct.)
Example: A man hired two men to kill his wife. Pursuant to his plan, the men kidnapped the wife in Alabama, then drove her into Georgia and killed her. The man pleaded guilty to murder in Georgia in exchange for a life sentence. After the plea, an Alabama court tried and convicted him and sentenced him to death. The U.S. Supreme court held that, under the dual sovereignty principle, two states may separately prosecute a defendant for the same conduct without violating the Fifth Amendment's Double Jeopardy Clause. (Heath v. Alabama, 474 U.S. 82 (1985).)
If you're facing criminal charges, talk to a criminal defense lawyer. Some lawyers practice in both state and federal courts, while others might practice in only one or the other. You'll want to find a defense attorney who understands the ins and outs of the court where your case will be handled.
]]>As generally applied, this rule isn't controversial. For instance, it’s hard to imagine someone sincerely arguing that they didn’t know that theft or driving under the influence of alcohol was illegal.
People charged with crimes often argue that they were mistaken not as to the law, but as to the facts. Factual mistake is more likely to provide a legitimate defense than legal mistake. But not all crimes lend themselves to a mistake-of-fact defense.
For example, people charged with statutory rape commonly assert that they didn’t know their partner wasn’t old enough to consent. In this situation, the defendant isn’t arguing mistake of law (that they didn’t know having sex with a minor was illegal), but rather, mistake of fact (that they didn’t know how old their sexual partner was). Mistake of fact is often a viable defense to criminal charges, but in most states it’s not when statutory rape is involved.
For more on state of mind in criminal cases, including an example of ignorance of law as a valid defense, see How Defendants' Mental States Affect Their Responsibility for a Crime.
]]>In a criminal case, the prosecution must disclose information that forms the basis of its case. This process is called discovery. A defendant is entitled to the names and statements of the witnesses that the prosecution plans to call, as well as a list of physical evidence and documents. The prosecution must also disclose any deal it has offered to a witness in exchange for testifying. While normally prosecutors have to disclose all witnesses who are relevant to the case whether or not those witnesses will testify, they often don’t have to reveal the identity of confidential informants (CIs).
The government has an interest in not giving up the identity of a confidential informant to a defendant or anyone else. After all, CIs provide the police information that can put people in prison, and they often legitimately fear retaliation.
Courts have long recognized the importance of the confidential informant in solving crime. Police gain information and leads from these informants that they may not be able to learn from other sources. If police reveal the identity of an informant, they may not get any more information from that person, and others may be afraid to serve as informants. Given the importance of CIs, courts have granted them privilege, which means that they don’t have to be disclosed in the same way as other witnesses.
The general rule is that the prosecution doesn’t have to disclose the identity of a confidential informant. However, this rule has many exceptions; if a criminal defendant can show the importance of the CI’s identity to the case, it may be possible to find out who’s been talking to the cops.
After a defendant has made a motion to reveal the identity of a CI, the court will evaluate the circumstances and evidence in the case, and then make a call about how important knowing the identity of the informant is to the defendant’s defense.
Factors the court will consider in deciding whether a confidential informer’s identity should be revealed include:
The court may also evaluate the extent to which the confidential informant was involved in the crime. If the CI directly witnessed or participated in the criminal activity, then ordinarily the court will order disclosure. But if there is evidence of the crime from a source other than the CI, the court may decide to keep the informer’s identity secret.
For example, say the police arrest Joe for embezzlement based on the information provided by a confidential informant, his accountant Ricky. Joe learns from the prosecution that the unnamed CI was involved in the embezzlement and is the main source of evidence for the prosecution. Joe argues that he needs to know the CI’s identity. He claims that the documentation the CI provided the police is false, and that he needs the CI’s identity to prove how it was falsified. Given that Ricky’s information is material to the case against Joe, and that the basis for it is an essential part of Joe’s defense, a court might grant a motion to disclose the CI’s identity. But if Ricky was only one piece of the evidence against Joe, and the prosecution had other, independent evidence of Joe’s criminal activities, then the court might decide it’s not necessary to reveal Ricky’s identity to Joe and his attorneys.
The prosecution and police typically don’t have to reveal the identity of an informant if they don’t have it. So if they get an anonymous phone call detailing some of Joe’s shady business activities and use this information as a lead to uncover Joe’s dealings, Joe would be out of luck at trial in discovering the identity of the person who ratted him out. The police are generally not required to investigate the confidential informant’s identity if it’s unknown to them.
There are two opportunities to find out the identity of a confidential informant: before and during trial. If a defendant doesn’t ask for disclosure of the identity at one of these two times, then the issue is waived (meaning that the defendant can’t find out the identity later).
It can be an uphill battle to learn the identity of a confidential informant, but discovering it can also be crucial to a defendant’s ability to mount an adequate defense. In addition, if a court orders disclosure and a witness refuses to name the confidential informant, then the court may strike the testimony of that witness or dismiss the case, so it’s worth the effort to try and find out who the confidential informant is.
]]>Criminal negligence (sometimes called culpable negligence) refers to a defendant who acts in disregard of a serious risk of harm that a reasonable person in the same situation would have perceived. Another common definition includes an act that amounts to a gross deviation from the general standard of care.
Offenses that may result from criminal negligence include involuntary manslaughter, negligent vehicular homicide, criminal neglect or endangerment of a child, negligent storage of firearms, or negligent keeping of a dangerous dog.
The term "reckless" essentially describes a defendant's simultaneous understanding and conscious or wanton disregard of a substantial risk of harm. Examples include reckless discharge of a firearm toward a house or vehicle, reckless driving, drag racing, and criminal vehicular homicide (intoxicated)
Some courts draw a distinction between recklessness and criminal negligence, explaining that recklessness requires that the defendant actually appreciate the risk in question, while criminal negligence occurs when the defendant should have been aware of the risk. (See Ex parte Koppersmith, 701 So.2d 821 (Ala. 1997).)
In other words, recklessness can be considered a step above criminal negligence but doesn’t quite reach the level of a knowing or intentional act. Practically speaking, though, the concepts are difficult to distinguish, and many courts and legislatures use "criminal negligence" and "recklessness" interchangeably.
Civil negligence means a person failed to exercise reasonable care in their actions. Criminal negligence, on the other hand, typically involves a negligent act that is so egregious, it’s likely to result in the risk of death or serious bodily harm.
Say someone made an illegal left turn and hit a pedestrian. This traffic violation and the resulting harm probably won’t rise to the level of criminal negligence. The left turn was illegal but not foreseeably dangerous. But had the person been drag racing and hit a pedestrian, the person would likely be guilty of criminal negligence. A reasonable person knows drag racing is dangerous and the defendant consciously disregarded the risk.
The other distinction is that civil negligence can result in monetary damages, but no possibility of jail time. In a civil case, the victim (plaintiff) files a lawsuit against the wrongdoer (the defendant). Criminal negligence can result in jail or prison time, and a government prosecutor files criminal charges against the defendant.
A person may defend an act of criminal negligence by claiming the act was an accident or didn’t rise to the level of consciously disregarding a serious risk of harm. Questions of criminal negligence often come down to a jury deciding whether the evidence supports the charges of criminal negligence.
If you have questions regarding charges or an investigation involving acts of criminal negligence or recklessness, contact a criminal defense attorney. A lawyer can help you understand the law and protect your rights.
Motive is often confused with "mens rea" (pronounced menz RAY-ah). Mens rea means "guilty mind" and refers to the defendant's culpability or intent to commit the criminal act. Motive is the term used to explain why a person committed a crime.
Mens rea is an element of just about every crime and requires the prosecution to establish that the defendant intended to commit the criminal act. (Sometimes it’s enough to prove that the defendant didn’t act intentionally but, rather, was reckless or criminally negligent.) But motive usually isn’t a criminal element—the prosecution doesn’t have to prove the defendant had it. Instead, prosecutors try to establish motive in order to convince the jury that the defendant is guilty.
Example: Johnny and June have been happily married for 30 years. Johnny is diagnosed with a terminal illness and is in constant pain. After living in agony for several months, he repeatedly asks June to kill him. After much deliberation, June shoots and kills Johnny. June's intent was to kill. Her motive was to stop her husband’s pain. She’s guilty of murder even though her motive may have been compassionate.
Example: Rob is on trial for theft by larceny. The prosecution has to prove that he took someone else’s property while intending to permanently deprive the owner of it. Rob claims that he took Joe’s wallet so he could have it cleaned—then he was going to return it. In order to show that Rob intended to keep the wallet for his own purposes, the prosecution offers evidence that Rob has a drug habit that he’s had trouble financing.
]]>About that movie, Double Jeopardy -- I have a feeling the entire premise is false. It shows a woman trying to shoot her husband in a public square, supposedly safe in the knowledge that since she's already (but wrongly) been convicted of his murder, she can't be prosecuted for it again. And another thing: Could she have been found guilty of the murder the first time around in spite of the fact that no body was ever found?
We look to Hollywood to give us fantasy, and the premise underlying the movie Double Jeopardy is just that -- a fantasy. In the movie (this is all in the trailer, so I'm not giving anything away), the heroine is convicted of killing her husband, who later turns out to be alive.
The movie tells us that she cannot be convicted of killing him again, so she is free to murder him in broad daylight. In reality, if our heroine kills the nasty husband now, she can be prosecuted, because the murder would take place in a different time and place than the (non-) murder for which she was earlier convicted.
The doctrine of double jeopardy does exist, and it basically says that you cannot be tried for the same crime twice. But if the two supposed murders didn't take place at the same time and place, they're not the same crime, simple as that.
As to your last question: The fact of the matter is that in rare cases, people can be convicted of murder without the body. The prosecutor can use circumstantial evidence -- for example, the fact that the victim has been long-missing and has never contacted her loved ones -- to prove that the victim is dead. If it weren't for this rule of evidence, potential murderers would have an all-too-easy way of avoiding prosecution -- by hiding the body. And next thing you know, Hollywood movies would be showing us creative methods of corpse disposal.
Now suppose Art attacks Bob, and Carl jumps to Bob’s defense. If Carl forcefully repels Art in order to save Bob, and the prosecution later charges Carl with assault, does he have a defense?
He very well might—not because of the self-defense doctrine per se, but due to the concept of defense of others.
Although it involves a different person doing the defending and the rules for it depend on the jurisdiction, defense of others is very similar to self-defense. For either defense to apply in most states, the defendant must reasonably believe that someone is in imminent danger of harm. In addition, the defendant must use only as much force as a reasonable person would use to put an end to the threat.
]]>Once that five years is up, that robber can cite the statute of limitations, thumb his nose at the prosecutor and go scot free. That may sound crazy, but there is a rationale for these statutes. They're passed to give law enforcement personnel an incentive to act swiftly and efficiently, and to protect everyone from the confusion that results when cases are premised on witnesses' memories fading and evidence that's less reliable as time goes by. Don't panic about murderers running around free, though -- there is generally no statute of limitations for murder.
But what about the tolling, you ask? When the statute of limitations tolls, that means it has been legally suspended -- in other words, the clock stops running for a certain period of time -- and the five or however many years gets further away.
Tolling most commonly occurs when the defendant becomes a fugitive from the jurisdiction where he committed the crime. For example, let's say that Jesse James robs a bank in Dodge City, Kansas on July 1, 2011. The next day, James flees Kansas hell-bent on escaping capture, and he hides out in the Badlands of South Dakota for six years. James is then caught and charged by the feds with bank robbery on July 1, 2017. James will not be able to get his case thrown out by arguing that the five-year limit for prosecuting his case has passed. Instead, the judge will rule that the statute of limitations tolled (was suspended) during the six years that James was on the lam, and the prosecution can go forward.
]]>But a defendant can request that her trial move to another county. And if there’s a reasonable likelihood that she can’t receive a fair trial in the original venue, a court may grant her request.
Someone accused of a crime generally has the right to a fair trial by an impartial jury. But a defendant doesn’t have the right to a trial in the county of his choice. Circumstances that make juror impartiality unlikely can, however, arise. In those circumstances, defense attorneys often “move” to have the trial take place somewhere else. (In most states, the prosecution can’t request a change of venue.)
Some state constitutions address the right to a change of venue, but in most states, the issue is left to statutes or court rules. These laws and rules explain how to request a change of venue, and may impose deadlines to file the requisite motion.
To achieve a change of venue, defendants typically have to show a reasonable likelihood that they can’t receive a fair trial. That reasonable likelihood is usually due to pretrial publicity, but it could have to do with some other event making it almost impossible to find an impartial jury.
Venue changes can also happen when the current venue is simply the wrong one. For instance, if the crime occurred in County X, and the case is currently in County Y, County Y most likely lacks jurisdiction. If so, it may have to transfer the case to County X.
Some states, as well as the federal courts, allow a change of venue for the convenience of the parties or witnesses, typically because some or all of the witnesses reside elsewhere. But the inconvenience usually must be substantial before a court will change venue for this reason alone.
Other reasons for a change of venue include:
Negative pretrial publicity is the most common reason for seeking a change of venue. But some publicity won’t justify a venue change—the publicity has to be severe enough to the point that it affects the ability to find an impartial jury. (Lawyers often refer to publicity having “tainted” the jury pool.)
To get a venue change based on publicity, courts usually require that the defense show that the media coverage caused actual prejudice in the prospective jurors’ minds. In rare cases, sufficiently pervasive, sensational, and slanted publicity will cause the court to presume that there’s prejudice.
In most cases though, the motion for venue change will turn on what prospective jurors say during voir dire (a normal part of jury selection). But proving that a few would-be jurors are actually biased isn’t enough. The defense typically has to show a likelihood that the publicity has poisoned the entire "pool."
The ultimate test for prejudice is whether jurors can set aside any opinions they may have formed from the publicity and decide the case only on the in-court evidence. But most jurors will say they can do that. So, the judge may have to probe.
The court might consider a variety of factors other than the words of prospective jurors, such as:
The judge will often review articles and broadcasts, and take any other relevant information into account.
Again, the ultimate issue is whether the publicity affects the defendant’s right to a fair trial.
Normally, in order to seek a venue change, the defense must file a written motion with affidavits demonstrating why the defendant can’t receive a fair trial. Some states, though, allow the judge to change venue without a request.
Judges usually decide motions to change venue because of bad publicity after voir dire. Judges are typically afforded significant leeway in deciding whether to change venue. That leeway may make it tough for the defense to convince an appeals court to overturn the decision. (See our sections on appeals and writs.)
The ability to change venue is related to the constitutional right to a fair trial, but it itself isn’t considered a constitutional right. Instead, it’s a privilege that’s capable of being waived. The effect is that, in most states, if a defendant doesn’t move for a change of venue before the designated stage, he’s lost the right to challenge venue and can’t raise the issue on appeal.
Courts are reluctant to change venue, and defendants can usually get only one venue change. Changing venue can affect the entire case. Further, the law on venue change may vary from state to state and from state to federal court. So, it’s crucial to rely on an experienced attorney for explanation and advice.
]]>Often multiple law enforcement agencies will work together to quell civil unrest. In cases where local resources become overwhelmed, the state can call in the National Guard. Only in limited circumstances can the federal government become involved.
In the United States, the federal government holds a different law enforcement role than state governments. The framers of the Constitution did not want a national police force. Rather, through the Tenth Amendment to the U.S. Constitution, general “police powers” were left to the states.
Under their police powers, state governments have broad authority to make and enforce laws necessary to preserve public health, safety, and general welfare. The federal government, on the other hand, carries a narrower policing role.
Most states divide law enforcement responsibilities by jurisdiction. Local governing bodies can establish law enforcement departments, and in many states, you’ll find city or municipal police departments and county sheriff departments. You’ll also find certain agencies with statewide jurisdiction, such as state patrol units or state investigative agencies. Examples are the Minneapolis Police Department, Los Angeles County Sheriff's Department, Kentucky State Police, and Georgia Bureau of Investigation.
A law enforcement agency and its officers are typically authorized to enforce laws only within their geographic boundaries. So an officer working for a city police department can provide policing services within the city limits. A county deputy would have arrest powers within the county limits. And state troopers patrol state highways. Other agencies with statewide jurisdiction often assist local departments by providing additional resources and support, especially in complex investigations or when local resources have been exhausted.
Federal law enforcement power comes from Congress. The U.S. Code gives more than 80 federal agencies authority to enforce laws that fall under their agency jurisdiction. For instance:
Approximately 100,000 full-time federal law enforcement officers provide policing protection compared to more than 700,000 full-time state and local officers. (Bureau of Justice Statistics (2019).)
The National Guard has a unique, dual mission involving federal and state governments.
State governors. State governors can activate the National Guard to assist with local or statewide emergencies (such as riots and protests). Assistance can take on various forms, including law enforcement.
President. Under the Insurrection Act, the President can also call upon (or “federalize”) the National Guard in limited circumstances to suppress insurrection and enforce federal law. (10 U.S.C. §§ 251-253 (2020).) This law also allows the President to deploy military troops for the same purposes. However, the authority given under the Insurrection Act does not amount to martial law, which is the displacement of civilian authority by the military. In fact, a separate law prohibits the use of active-military troops to conduct civilian law enforcement activities, such as patrolling the streets. (18 U.S.C. § 1385 (2020).)
In times of civil unrest, immediate threats to public safety require government action. Generally, the law enforcement agency responsible for quelling civil unrest will depend on where and how the situation is unfolding.
If protests and rioting are occurring within city or county limits, that city’s police department or the county’s sheriff department will typically have primary jurisdiction. When protestors block or march down state highways or interstates, the state patrol will likely be the agency in charge.
Civil unrest, though, doesn’t always have nice geographic boundaries. In cases where rioting or disorder spills over to another city or county, multiple agencies could have jurisdiction. In these instances, the agencies can act within their specific jurisdictions or agree to give officers the power to enforce laws in multiple jurisdictions.
Local resources—including manpower and equipment—can be quickly overwhelmed during times of civil unrest. In such cases, a law enforcement agency can request assistance from neighboring cities or counties or the state.
The role of federal law enforcement in quelling civil unrest is more limited. Federal law enforcement agents can work with, or provide assistance to, local and state law enforcement authorities who request assistance. Often, this arrangement requires a written agreement between the federal and local agencies to establish a chain of command and give federal officers arrest authority in the jurisdiction.
A federal agency independently has the power to enforce violations of federal laws that fall within the agency’s purview. But federal agents exercising this power when it comes to mass gatherings and protests has proved controversial—and legally tricky. For instance, President Trump sent federal agents to Portland, Oregon, during protests in 2020. According to the federal government, the agents were from the Department of Homeland Security and had federal law enforcement authority to protect federal buildings, grounds, and property. But Portland sued the federal government, alleging that federal agents acted beyond their authority by arresting and clashing with protesters.
More commonly, when protests turn violent or overwhelm local and state police, the state governor calls in the state National Guard. National Guard units can assist law enforcement in various ways, from providing support and equipment to assisting emergency responders and barricading roads.
The President can also call in the National Guard in three circumstances: at the state’s request, to enforce federal law, or to protect citizens' civil rights (if the state refuses to do so). Often, this power comes into play when a governor asks the President to activate a National Guard unit. But the President can also activate the Guard by sidestepping, or acting over the objection of, the governor. For instance, when the Alabama Governor blocked black students from entering a university building in 1963, President Kennedy federalized the state National Guard to enforce desegregation laws.
The President can also deploy military forces to suppress insurrection (again, this is not the same as martial law). Examples where Presidents have used this authority include the L.A. riots and desegregation efforts in the South. In the case of the L.A. riots, the California governor asked the President to deploy military troops to assist law enforcement and the state National Guard in quelling the violence. In a few instances, Presidents have deployed military troops on their own initiative to control insurrection—most notably during the civil rights movement. For example, President Eisenhower deployed Army troops to Arkansas to assist in school integration of black students, after the Arkansas governor, in violation of the law, activated the state National Guard to block black students from entering a school.
Regardless of which entity is policing an area during a period of civil unrest, you have constitutional rights. If law enforcement uses excessive force against you or wrongly arrests you, for example, you can get legal help.
If you are facing criminal charges, you should speak with a criminal defense attorney. If you want to know whether you have a viable claim against the government for violation of your rights, consider consulting a civil rights or personal injury attorney.
And keep in mind that several organizations, including the ACLU, provide information on protesters’ legal rights.
]]>(For more on defenses to crimes, see Defenses to Criminal Charges. For information on unreasonable use of force in potential self-defense scenarios, see Imperfect Self-Defense.)
Example: Attila and Genghis begin arguing after their cars collide. The argument gets heated, and Attila suddenly lifts his arm and forms his hand into a fist. Thinking that Attila is about to hit him, Genghis quickly knocks Attila to the ground and twists his arm behind his back. Under these circumstances, a reasonable person would think that Attila was about to hit Genghis. Because people don’t have to wait to be hit before protecting themselves, Genghis acted in self-defense and isn’t guilty of a crime. In fact, an officer could arrest Attila for assaulting Genghis (making Genghis fear that he was about to be hit.) (See Assault and Battery.)
Example: Popeye sees Bluto walking down the street. They’ve had a few scuffles in the past. Though Bluto is paying no attention to Popeye, Popeye has a hunch that his adversary may trip him when walking by. To prevent this, Popeye socks Bluto. Popeye doesn’t have a valid self-defense claim, because the circumstances wouldn’t suggest to a reasonable person that Bluto was about to attack him.
]]>Intoxication is typically “involuntary” when someone forces drugs or alcohol upon the defendant or tricks the defendant into consuming them. It may also be involuntary when caused by medication that a doctor has prescribed or administered. But involuntary intoxication generally isn’t a defense where a substance has a particularly severe effect on a defendant who chose to consume the substance. And isn’t necessarily an automatic defense—the defendant must typically prove a very high level of intoxication.
In practice, involuntary intoxication defenses rarely succeed.
Whereas voluntary intoxication may, in limited circumstances, prevent a defendant from forming the specific intent required for certain crimes, involuntary intoxication may be a complete defense to a variety of charges. Depending on the law of the state, involuntary intoxication may excuse what would normally be criminal conduct if it:
Example: Joe and a group of friends are playing cards at his house. They’re drinking beer; Joe is drinking soda. One of his friends slips a pill containing a synthetic drug into Joe’s soda can and Joe unwittingly consumes it. He soon goes into a complete stupor. Not knowing what he’s doing, he begins to attack his friends. If charged with assault, Joe may have a viable involuntary intoxication defense.
]]>Will any mistake do? No. In most situations, the mistake must be reasonable. But even an unreasonable mistake of fact can at least at times provide a defense if it negates a required specific intent.
Example: Kaitlin takes her Labrador, Buster, to the dog park every day so he can play off leash with the other dogs. On Friday, Kaitlin lost sight of Buster for a few minutes. When she relocated him, she put him on the leash and walked him home. At home, Kaitlin took a close look at Buster and noticed he had a different collar with the name “Spot” on it. Kaitlin had mistaken Spot for Buster because they are both Labradors and look just alike. Kaitlin isn't guilty of theft because, when she took Spot home, she made a reasonable mistake of fact—that Spot was her dog.
Example: On Saturday, Kaitlin again takes Buster to the dog park. Once again, she loses track of him for a few minutes. This time, when Kaitlin goes to look for Buster, she is more focused on texting with her friend Nancy than on finding Buster. Kaitlin puts a leash on a dog she believes to be Buster, without looking down at the dog, and walks home. When she arrives, she looks down at the dog for the first time, and is shocked to see it's a Chihuahua. Although Kaitlin’s mistake was clearly unreasonable—a Chihuahua looks nothing like a Labrador—it may still provide her with a valid defense. That's because the mistake negates the specific intent required for theft. Theft typically requires that the defendant specifically intend to permanently deprive the owner of property. (Many crimes don’t fall into the specific intent category—check out General Intent Crimes vs. Specific Intent Crimes.)
Typically, mistake of fact is a regular defense, rather than an affirmative defense. In other words, where relevant, the prosecution must prove beyond a reasonable doubt that the defendant acted with criminal intent rather than through reasonable mistake. The defense can argue that the defendant acted because of a reasonable mistake, leaving the prosecution to establish otherwise.
Although mistake of fact is typically a legitimate defense, it’s unlikely to aid in defending against a strict liability crime. Courts have also generally rejected mistake of fact where the mistake was unreasonable but attributable to the person’s mental illness. (The law on issues like insanity and “diminished capacity” is complex and varies—for more information, see Defenses to Criminal Charges.)
The difference between mistake of fact and mistake of law is often subtle, and courts vary in how they handle such mistakes. If you have been arrested or charged, you should talk to a qualified attorney in your area to find out how the law applies to the facts of your case.
]]>If, after the prosecution and defense have rested their cases and made their closing arguments, the jurors’ deliberations have stalled, a judge might step in. Judges can’t force juries to reach verdicts, but they can apply a little pressure when the jury has deliberated and reported back that it’s at an impasse.
When a jury claims that it can’t reach a verdict, a judge may employ the “dynamite charge,” intended to blast the jurors out of their deadlock. It’s an instruction that urges the jurors to try to come to a verdict; it usually tells them to examine the case’s issues and reconsider their opinions and those of other jurors. But judges must be careful not to go too far—appeals courts will overturn convictions where judges have coerced juries into verdicts.
Updated: April 23, 2020.
]]>To determine whether one crime is necessarily included within another, courts have used at least three tests.
In evaluating whether a crime is "lesser included," some courts have looked at the way the charging document describes the charge against the defendant. Consider a scenario involving allegations of murder and assault with a deadly weapon. If an indictment were to charge that a murder occurred by stabbing, then, under the pleadings test, assault with a deadly weapon would be a lesser included offense. A defendant who did in fact commit murder by stabbing would have necessarily also committed assault with a deadly weapon (the deadly weapon, of course, being the knife). (Michael H. Hoffheimer, “The Rise and Fall of Lesser Included Offenses,” 36 Rutgers L.J. 351 (2005).)
Some courts have determined whether an offense is lesser included by looking not at the charging document but at the evidence actually presented by the prosecution. So, if the prosecution charged the defendant with murder and presented evidence that the homicide occurred by stabbing, then assault with a deadly weapon would again be a lesser included offense. (Hoffheimer, supra.)
But the most popular approach to identifying lesser included offenses among courts is the elements test. Crimes consist of elements, like a recipe consists of ingredients. Someone who commits each and every element of a crime has committed the crime. The elements test doesn’t look at the charging document or the evidence. Instead, it considers only the definitions of the crimes standing on their own.
This test provides that a more serious crime contains all the elements of a lesser included crime, plus one or more other elements. Under this test, regardless of the pleadings or the evidence, assault with a deadly weapon is not a lesser included offense of murder. That’s because the definition of murder doesn’t require that the killing occur through use of a deadly weapon. (Hoffheimer, supra.)
Take a look at another example. Drug possession is commonly considered a lesser included offense of drug possession for sale (or a similarly named crime, like drug possession with intent to distribute). Simple drug possession often contains the following elements:
A possession-for-sale statute might have the three elements above, with the added element of the defendant’s intent to sell the drug. Because possession for sale contains all the elements of simple possession, it would be a greater offense and simple possession would be lesser (or necessarily) included.
Example: Prosecutors can prove that Wallace had several baggies of cocaine in his jacket pocket. They will have no problem establishing that there was enough cocaine to use, that Wallace knew that he had it, and that he knew it was cocaine. If they can show that he intended to sell the drug—perhaps by the fact that he had more cocaine than he could use—then he’ll be on the hook for possession for sale. But if there’s a reasonable possibility that he had the substance simply for his own use, then he is guilty only of simple possession.
Judges and lawyers sometimes use a similar but distinct phrase to refer to a connected concept: “lesser related offenses.” They often use it when two crimes are somehow similar but have different elements, with neither crime containing all the elements of the other.
To a court that looks only at the elements, a consideration of the actual evidence won’t lead to a conclusion that one crime is necessarily included in another. But a consideration of the evidence could support a conclusion that the crimes are related.
Suppose, for instance, that someone smashes a restaurant window. The authorities determine that nothing in the premises has been disturbed or is missing. And there’s no evidence that the person who smashed the window entered the restaurant. After the police catch the window-smasher, the prosecution charges him with burglary and attempted burglary. As relevant to the case, the burglary statute contains the following elements:
The defendant wants the judge to give the jury the option of a vandalism conviction. He claims that he broke the window out of anger and had no intent to steal anything from the restaurant. The relevant part of the vandalism statute has these elements:
All of the elements of vandalism aren’t contained within burglary. So, under the elements test, vandalism isn’t a lesser included offense of burglary. But vandalism and burglary are closely related—the proof required for each is similar, and the definitions of the crimes protect the same interest, which is property security. And the evidence—introduced by the prosecution to prove burglary—might suggest that vandalism occurred in this case. So, under a common interpretation, vandalism could be a lesser related offense of burglary.
The difference between lesser included and lesser related offenses can be important, particularly when it comes to jury instructions. Those instructions give jurors options as to which, if any, crimes to convict the defendant of. A jury instruction on a particular crime will explain precisely what that offense is so that the jury may consider whether the defendant committed it.
A lesser offense can serve as a fallback for prosecutors, giving them a way to obtain at least some kind of conviction when the jury might acquit the defendant of a more serious crime. In other words, for prosecutors who are concerned that a defendant might “get off” entirely, having a jury consider a lesser offense can be a way to hedge bets. By the same token, a defense lawyer who suspects that the jury is inclined to convict the defendant of something might ask a judge to give an instruction on a lesser offense, with the hope that the defendant will be able avoid a more severe conviction.
In California, to name one state, defendants may request that juries be given instructions allowing for conviction on lesser related offenses. But they have no unilateral right to such jury instructions. On the other hand, even if the prosecution or defense objects, a judge has to give a jury instruction on a lesser included offense if there's substantial evidence that the defendant is guilty only of that lesser offense. (People v. Birks, 19 Cal.4th 108 (1998).)
As this article might suggest, issues like lesser included and lesser related offenses are complicated. And the law might vary from one state to another, and from state to federal court. These are among the reasons it’s critical to get your explanation and advice from a knowledgeable criminal defense attorney if you're at any stage in a criminal prosecution.
]]>“Jeopardy” in the legal sense describes the risk brought by criminal prosecution. With notions of fairness and finality in mind, the Framers of the Constitution included the Double Jeopardy Clause to prevent the government from trying or punishing a defendant more than once.
Specifically, double jeopardy protects against:
A defendant facing any of these scenarios can hold up the Double Jeopardy Clause as a shield.
There are clear instances when this shield is available, such as when a jury has acquitted a defendant and the state brings the same charges a second time. (If the prosecution discovered new evidence of the defendant’s guilt after the initial trial, too bad.) Double jeopardy also bars punishment in certain prototypical scenarios—for example, when a judge tries to resentence someone who has already served the punishment for the crime in question.
But there’s often not an obvious answer as to whether the Double Jeopardy Clause applies. Certain principles guide courts in making the determination.
Double jeopardy applies to criminal cases only, not civil or administrative proceedings. That means, for example, that a defendant convicted of a crime isn’t immune from a civil lawsuit for damages from the victim of the crime. It also means that the DMV can suspend and revoke drivers' licenses for the same actions that lead to criminal convictions. (An example is drunk driving, which a court and the DMV can punish separately.)
Double jeopardy prohibits different prosecutions for the same offense. This rule can come into play when the government brings a charge against someone for an incident, then prosecutes that person again for the same incident, only with a different charge. In that kind of situation, if each charge doesn’t require that the prosecution prove at least one additional fact that the other doesn’t, then the charges constitute the same offense under double jeopardy law. Here’s an example showing how that rule works:
A man was convicted of joyriding, the elements of which were taking or operating a vehicle without the owner’s consent. Later, the government charged him with auto theft, which consisted of joyriding while intending to permanently deprive the owner of the vehicle. To prove joyriding, a prosecutor wouldn’t have had to prove anything more than what’s required to prove auto theft. (Joyriding was a “lesser included” offense of auto theft.) Joyriding and auto theft therefore represented the same offense, and the auto theft prosecution violated the double jeopardy principle. (Brown v. Ohio, 432 U.S. 161 (1977).)
The government must place a defendant “in jeopardy” for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn’t cause jeopardy to “attach”—the proceedings must get to a further stage. Indeed, in many cases, the prosecution can drop charges through dismissal or nolle prosequi, then later refile them.
Generally, jeopardy attaches when the court swears in the jury. In a trial before a judge, jeopardy normally attaches after the first witness takes the oath and begins to testify.
But the empaneling of a jury—selecting jurors and swearing them in—doesn’t actually mean that, whatever happens, the defendant can’t be retried. Of course, if the jury acquits or convicts the defendant, the government normally can’t re-prosecute. But if there was a conviction and an appellate court overturns the judgment, the prosecution might be able to retry the defendant. (Retrial sometimes isn’t allowed, such as when an appeals court decides that the evidence was insufficient to convict the defendant.)
Criminal trials often end in something other than acquittal or conviction. There might be a mistrial because of jury misconduct, for example, or the jury might “hang,” meaning that its members can’t agree on a verdict. In these kinds of scenarios, even though a jury has already been sworn in and jeopardy has thereby attached, retrial is usually allowed. There are exceptions that can prevent retrial—for instance, severe misconduct by a prosecutor intended to create a mistrial. But, in lots of cases, the swearing in of the jury isn’t the actual point of no return.
The attachment of jeopardy doesn’t necessarily mean the government can’t re-prosecute the defendant; jeopardy must also terminate. In other words, the case must in some sense conclude. The classic example is a jury reaching a verdict of either guilty or not guilty. Jeopardy also terminates when a judge finds the evidence insufficient to convict the defendant and enters a judgment of acquittal rather than letting the case go to the jury.
But just because a case ends doesn’t mean that retrial is barred. Again, a hung jury often allows for a retrial. Similarly, if the defense consents to a mistrial, perhaps because of juror misconduct, the prosecution can usually re-prosecute the defendant. On the other hand, if a judge declares a mistrial over the defense’s objection, the prosecution typically must show a critical need in order to retry the defendant. But that isn’t as tough as it might seem. For example, retrial might well be allowed when, despite the defense’s protest, a judge declares a mistrial because a juror stopped coming to court. (United States v. Wells, 790 F.2d 73 (10th Cir. 1986).)
The double jeopardy guarantee protects only against double prosecution or double punishment by the same “sovereign,” or government. Even if the exact same conduct is at issue, a state prosecuting someone doesn’t prevent the federal government from doing the same, and vice versa. (Learn more about state vs. federal prosecution.)
The federal prosecution of the officers who beat Rodney King illustrates the "separate sovereigns" principle. The State of California prosecuted the videotaped officers but failed to obtain any convictions. The 1992 Los Angeles Riots ensued. The federal government then prosecuted the officers for the same beating, alleging a violation of King’s civil rights. The federal convictions were valid because separate sovereigns had tried the officers.
In the 2019 case Gamble v. United States, the U.S. Supreme Court reaffirmed the separate sovereigns doctrine. (139 S. Ct. 1960 (2019).) The defendant in that case had pleaded guilty in state court to the crime of possessing a firearm as a felon. The federal government also charged the man for the incident in question, but under an equivalent federal law. The Supreme Court noted that sovereigns have their own offenses, meaning that in this kind of case the defendant really isn't being prosecuted twice for the same crime. Accordingly, it decided that the second prosecution didn't violate the double jeopardy principle.
Prosecutors often file multiple charges against defendants for the same set of facts. For example, a prosecutor might charge someone with both assault and assault with a firearm for pointing a weapon at someone else. In that situation, if a jury were to convict the defendant of both offenses, double jeopardy might well block the judge from handing down a separate sentence for each crime.
Double jeopardy, like so many criminal law concepts, is intricate. And the legal rules throughout the country, while often similar, aren’t always exactly the same. States, for instance, can have their own double jeopardy protections that supplement the Fifth Amendment. Also, some state legislatures and courts might take different approaches than others. If you want to know how or whether the double jeopardy principle applies to a situation you face, make sure to consult an experienced criminal defense attorney.
]]>(For more on the mental state, or “mens rea,” required to commit a crime, see How Defendants' Mental States Affect Their Responsibility for a Crime. Also see Can I be convicted of a crime if I didn’t realize what I did was illegal?)
Most crimes require general intent, meaning that the prosecution must prove only that the accused meant to do an act prohibited by law. Whether the defendant intended the act’s result is irrelevant.
Example: A state’s law defines battery as “intentional and harmful physical contact with another person.” This terminology makes battery a general intent crime. The intent element is satisfied if the defendant intends to cause harmful physical contact and actually causes it—it doesn’t matter whether the defendant actually intended to hurt or seriously injure the victim. So, if Jill punches Jack in the eye after Jack calls her an “idiot,” she has probably committed a battery. All the prosecution has to show is that Jill intentionally punched Jack. The prosecutor doesn’t need to show that Jill intended to hurt Jack—the law assumes as much.
Specific intent crimes typically require that the defendant intentionally commit an act and intend to cause a particular result when committing that act. (U.S. v. Blair, 54 F.3d 639 (10th Cir. 1995).) In that regard, merely knowing that a result is likely isn’t the same as specifically intending to bring it about. (Thornton v. State, 397 Md. 704 (2007).)
Example: A state’s law defines aggravated battery as “intentional and harmful physical contact with another with the intent to maim or disfigure.” This is a specific intent crime because it requires that the defendant not only cause harmful contact, but also with the purpose of maiming or disfiguring the victim. So, suppose that Denise says to Vance, “No one will love you once I mess up that pretty face.” She then slices off his nose with a large, sharp razor blade. Since the evidence is likely to establish that she specifically intended to disfigure Vance, she is probably guilty of aggravated battery.
Example: A state’s law provides that a person who takes another’s property “with intent to deprive the owner is guilty of larceny.” By describing the defendant’s purpose in taking property, it is a specific intent crime. (Wetherelt v. State, 864 P.2d 449 (Wyo. 1993).)
Frequently, statutes don’t clearly state whether the offenses they describe require specific or general intent. Rather, courts determine a crime’s intent element by following the general rule that terms like “knowingly” and “voluntarily” denote general intent (as in "knowingly and voluntarily use force against another"). Terms that describe something more than knowledge and voluntariness, like "purpose," tend to indicate specific intent (as in "knowingly and voluntarily use force against someone with the intent to disable him or her"). (U.S. v. Peralta, 930 F. Supp. 1523 (S.D. Fla. 1996).)
Like so many areas of law, determining whether a crime requires general or specific intent can be tricky. If you've been charged with a crime, immediately consult an experienced criminal defense attorney. An experienced lawyer can fully explain the applicable law, advise you of any available defenses, and otherwise protect your rights.
]]>Under the Sixth Amendment, defendants have a right to present a defense. They are also entitled to give a closing argument. Usually, the prosecution first makes a closing argument, then the defense attorney. The prosecutor, who has the burden of proof, frequently gets the chance to respond to the defense’s final argument.
For defense counsel, closing argument is the last chance to remind the jury of the prosecution’s high burden of proof and to persuade the jury that there is, at a minimum, reasonable doubt as to the defendant’s guilt.
An effective closing argument ties together all the pieces of a trial and tells a compelling story. Generally, closing arguments should include:
For example, in a shoplifting case, the criminal defense attorney’s closing argument might go through all the evidence, but focus on the fact that the surveillance video was blurry and the defendant’s alibi. Counsel could then remind the jury that it must be convinced of guilt beyond a reasonable doubt, a very high standard. Since there is reasonable doubt about the identity of the shoplifter, the defense attorney will ask the jury to follow the law and find the defendant not guilty.
In rebuttal, the prosecutor might point out that police found items at the defendant’s home that are identical to the stolen goods, and that the alibi came from the defendant’s family member—hardly an unbiased source. The prosecutor will then ask the jury to uphold the law and find defendant guilty.
In practice, judges give attorneys great freedom at closing, as long as the argument has some relation to the evidence presented at trial. Additionally, judges must carefully craft any restrictions on closing so that they don’t deny the defendant the opportunity to discuss important considerations for the jury.
Nonetheless, there are limits to proper closing argument. When attorneys overstep them, usually a judge will simply tell the jury to disregard the improper argument. But when attorneys commit serious misconduct during closing, a judge might declare a mistrial, and if not, a court of appeal might overturn any conviction.
Arguments must be based on evidence. Most importantly, the conclusions that an attorney urges a jury to draw must be based on the evidence. Counsel cannot use the closing argument as an opportunity to refer to evidence that wasn’t part of the trial. For example, an attorney can’t argue that no similar crimes have been committed in the location in question since the defendant’s arrest without having presented evidence to that effect.
Arguments cannot be irrelevant, confusing, or prejudicial. Judges can also prohibit or exclude arguments that are unrelated to the case, confusing, or inflammatory. For example, name-calling is generally forbidden. And asking the jury to “send a message” to other criminals by finding the defendant guilty may be improper since the focus is only whether the particular defendant on trial committed a crime. (State v. Woodard, 2013 ME 36 (2013).)
A good closing argument can result in an acquittal, a hung jury, or even a conviction for a less serious offense. If you are facing criminal charges, the best way to protect your rights and defend yourself is to work with an experienced criminal defense attorney.
]]>Traditionally, the prosecutor wasn’t entitled to information about a defendant’s case. But in recent years, discovery has become more of a two-way street. Just as defendants can discover information from prosecutors, so too can prosecutors examine certain evidence in the hands of defendants.
Pretrial disclosure of information through discovery can foster settlement and enhance the fairness of trials.
No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn’t force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.
Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can’t call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.
Not exclusively. Sure, advance disclosure promotes fairer trial outcomes, but it also promotes case settlement, which saves judicial time and resources. If a guilty defendant finds out before trial that the prosecution has a particularly strong case, that defendant will be more likely to plead guilty and save the government the hassle of trying the case. Discovery is likely a significant reason why at least 90% of criminal cases settle before trial.
Issues regarding settlement aside, discovery is intended to help defendants in the sense that prosecutors must hand over certain information that's helpful to the defense.
No. Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called “work product.” Prosecutors don’t have to turn over their work product to defendants—otherwise, it just wouldn’t be fair. Lawyers would be incentivized to hide their work or do less of it
Not really. Prosecutors can’t disclose all discovery on the eve of trial, but on the other hand, they don’t have to divulge it all way ahead of time. Discovery can unfold gradually. For example, a defendant’s attorney might receive a copy of the police report at the first court appearance, but might not receive a prosecution expert’s written analysis of blood evidence until shortly before trial.
]]>When a case is called for trial, a randomly selected panel of potential jurors (called a venire) is seated in the courtroom.
The trial judge begins voir dire by asking the prospective jurors questions to ensure that are they are legally qualified to serve on a jury and that jury service would not them cause undue hardship. For example, most states allow a student who might miss critical exams, a person who has an upcoming surgery scheduled, or someone who serves as sole caretaker of an ill or elderly family member to be excused from jury service for undue hardship.
Next, the lawyers for each side question the potential jurors about their biases and backgrounds, as well as any pre-existing knowledge they might have about the case. The attorneys can also ask questions designed to uncover characteristics or experiences that might cause potential jurors to favor either the prosecution or the defense. But the lawyers aren’t allowed to ask overly personal questions, and they aren't allowed ask the jurors how they would decide the case in advance.
After they have completed questioning, the lawyers begin removing potential jurors from the venire by making challenges for cause and peremptory challenges.
Challenges for cause are made when voir dire reveals that a juror is not qualified, able, or fit to serve in a particular case. Lawyers generally have an unlimited number of “for cause” challenges available.
In order to serve as a juror, a person must be a U.S. citizen, over the age of 18, live in the court’s jurisdiction, and have the right to vote. Also, each person must be able to physically sit through the entire trial as well as hear and understand the trial testimony. Jurors must also be mentally aware enough to comprehend and apply the judge’s legal instructions. Any person who doesn’t meet these criteria will be dismissed “for cause.”
Judges will also dismiss jurors who can’t put aside their feelings and apply the law impartially—that is, without actual or implied bias.
Actual Bias. Actual bias arises when potential jurors admit that they wouldn’t be able to be impartial. For example, a juror who states that she would never vote for a guilty verdict in any case because her religious beliefs prevent her from sitting in judgment of another would be excused for cause.
Implied Bias. Implied bias is present when potential jurors have character traits or personal experiences that make it unlikely for them to be able to be impartial, regardless of what they say during voir dire. So, a juror who is a close friend or relative of a key party, a witness, the judge, or an attorney for either side will be dismissed for cause. Bias is also implied when a would-be juror’s background or experience is likely to create a predisposition in favor of a party to the case. For example, in a case involving school teachers accused of fraudulently misrepresenting standardized test scores, any teachers in the panel will probably be excused for cause (even if those teachers swear in voir dire that they can be impartial).
No reason is required for a lawyer to use a peremptory challenge to excuse a potential juror. Such challenges allow each side to dismiss jurors who are otherwise qualified, but appear likely to favor the opposing party. However, peremptory challenges cannot be used to exclude jurors on the basis of race or class. Lawyers only have a specified number of peremptory challenges available—that number varies from state to state and depending on the nature of the case (a misdemeanor, felony, or death penalty trial).
In the process known as “striking a jury,” the prosecution and defense take turns arguing their challenges for cause. If the judge grants a challenge, the juror will be struck from the jury panel. Once there are no more viable challenges for cause, the sides alternate in striking jurors via peremptory challenges until those are exhausted or each side is satisfied with the jury panel. Some states require all challenges to be made orally, while others allow for written peremptory challenges.
The states vary in the number of jurors required for a jury, ranging from six to 23. If too many potential jurors have been eliminated after the use of challenges, the judge can either summon additional potential jurors or declare a mistrial.
Once the challenges are completed and there are enough jurors for a proper jury, the judge will place the remaining jurors in the jury box.
If the attorneys have any challenges to the demographic composition of the jury (claims that the other side used peremptory strikes to eliminate jurors on the basis of race, ethnicity, or gender), they must assert them at this time. Then, the jurors are sworn in, which ends jury selection and begins the next stage of the trial process.
]]>The right to trial by jury in a criminal case resides in both Article III, Section 2 of the federal Constitution (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”) and the Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”). But the right isn’t as broad as those texts might suggest, meaning that many defendants have to settle for judge trials, where the court decides whether the defendant is guilty.
According to the Supreme Court, the jury-trial right applies only when “serious” offenses are at hand—petty offenses don’t invoke it. For purposes of this right, a serious offense is one that carries a potential sentence of more than six months’ imprisonment. (Baldwin v. New York, 399 U.S. 66 (1970).) If the penalty is six months or less, the crime is serious only if the sum of its penalties are weighty enough. The Supreme Court decided in one case that up to six months’ incarceration or five years’ probation, plus a $5,000 maximum fine weren’t enough to make a certain kind of DUI a serious offense. (U.S. v. Nachtigal, 507 U.S. 1 (1993).) Likewise, in another case, it decided that a first-time DUI was merely a petty offense where:
(Blanton v. City of N. Las Vegas, 489 U.S. 538 (1989).)
Prosecutors regularly file more than one charge against defendants. The natural question is what happens when there are multiple charges that individually carry six months or less but exceed six months when added together. Unfortunately for defendants, the Supreme Court has held that the jury-trial right doesn’t apply in this circumstance. In one case before the Court, the defendant had been charged with two counts of obstructing the mail, each count providing a maximum of six months in jail. The Court found that the defendant had no jury-trial right. (Lewis v. U.S., 518 U.S. 322 (1996).)
The Supreme Court’s determination of what constitutes a serious offense and thereby entitles one to a jury trial sets a minimum standard. In other words, states must provide jury trials if an offense is serious under the Court’s standard. But they are free to guarantee jury trials to defendants when the crimes aren’t sufficiently serious under the federal standard. (Benitez v. Dunevant, 198 Ariz. 90 (2000).)
It’s possible that the decision as to whether to go to trial will rest largely on whether a judge or a jury will be the fact finder. To learn about the applicable law in your jurisdiction, consult an experienced criminal defense lawyer. Such a lawyer can also inform you of any other relevant considerations.
]]>When they're depicted on television, prosecutors and other lawyers are often aggressive and seem to make statements to, rather than ask questions of, witnesses. Is this how it goes in a real courtroom?
On direct examination, lawyers generally can’t ask leading questions. A question is leading if it suggests the answer. For example, “You couldn’t see very well, could you?” or, “Did you get to the scene at 8 p.m.?”
The prohibition against leading questions on direct examination forces lawyers to ask non-suggestive questions instead. So, a prosecutor can’t guide the testimony of a prosecution witness too much. The prosecutor has likely spoken to the witness before testimony begins and prepared him or her at least somewhat. But, while in court, the prosecution has to let its witnesses give their own accounts. That’s why some defense lawyers joke that the most important question for a prosecutor is, “Then what happened?”
On cross examination, however, there are only limited restrictions on questioning. For example, lawyers can’t “ask” argumentative questions. These are questions that don’t seek information, but rather challenge the witness in order to persuade the fact-finder (the judge or jury). An example of an argumentative question is, “You don’t expect the jury to believe that, do you?”
Nor are lawyers allowed to scream, curse, or ask about inadmissible evidence. But, as long as they follow the rules of evidence, attorneys don’t have to be cordial with opposing witnesses.
Lawyers might want to restrain themselves somewhat when cross-examining witnesses for fear of coming across as a bully, but they sometimes determine that being aggressive is the best course of action. They might hope that their confrontational style will fluster the witness or expose a nasty character trait. For example, a prosecutor cross-examining a defendant might take a harsh tone with the goal of creating an inconsistency in testimony or exposing the defendant’s temper.
Jury nullification occurs when a trial jury reaches a verdict that is contrary to the letter of the law because the jurors either:
Jury nullification takes place when jurors acquit a defendant who is factually guilty because they disagree with the law as written. For example, during Prohibition, juries who disagreed with alcohol control laws often acquitted defendants who had been caught red handed smuggling alcohol.
Jury nullification also occurs when a jury convicts a defendant because it condemns the defendant or his actions, even though the evidence at trial showed that he technically didn’t break any law. For example, all-white juries in the post-civil war South routinely convicted black defendants accused of sex crimes against white women despite minimal evidence of guilt.
In the modern era, jury nullification is most common in drug cases, where some jurors refuse to convict on drug possession charges either because they believe in legalization or feel that the drug laws discriminate against certain groups.
A jury’s verdict only decides the particular case before the court in that trial—it doesn’t change the law. But a consistent pattern of acquittals for prosecutions of a certain offense can have the practical effect of invalidating a statute. In fact, the pattern of jury nullification in alcohol prosecutions contributed to the adoption of the 21stAmendment, which repealed Prohibition.
Jury nullification has happened since the beginning of the trial system and persists because of a number of idiosyncrasies in the legal system that are designed to protect the integrity of the jury process. The law limits the courts' ability to inquire into jurors' motivations during or after a verdict. Jurors cannot be punished for their verdict, even if they reached it improperly. In addition, someone acquitted because of jury nullification cannot be tried again for the same crime because of the prohibition against double jeopardy. On the other hand, a conviction reached via nullification can be overturned on appeal or voided by a judge in some jurisdictions.
]]>Of course, defendants and their witnesses must testify truthfully at all times. But they must be careful to avoid going along with misleading information in a prosecutor’s leading questions. For example, if a defense witness’s story is that an incident occurred “at dusk,” the witness shouldn’t meekly go along with the prosecutor’s question: “It was really dark out there, wasn’t it?” If it wasn’t that dark out, the witness should answer, “No.”
To be sure that they testify as truthfully and accurately during a hostile cross-examination as during friendly direct questioning, defendants and their witnesses should:
A witness who isn’t able to answer a question should communicate that. For example, a witness who doesn’t have personal knowledge should say, “I don’t know” rather than guess at an answer. And a witness who has to qualify a “yes” or “no” to make it accurate should say something to the effect of, “Your Honor, I can answer that question only if I’m allowed to explain my answer.” Even if the witness doesn’t get to elaborate on cross-examination, the defense attorney can usually provide that opportunity on re-direct examination.
Example. Jesse James is on trial for armed robbery. After witness Kit Carson testifies and identifies James as the robber, defense counsel cross-examines him. The lawyer asks, “you had drunk three whiskeys within a half hour of entering the store, right?” The question is leading but proper. The theory is that since Carson is likely to be hostile to the cross-examiner, he won’t agree if the information is false. If Carson had two whiskeys—not three—within the half hour in question, he would simply answer, “No.”
]]>Prosecutors and defense attorneys can use an unlimited number of “cause” challenges to eliminate jurors who aren’t qualified, able, or fit to serve in the case. In using a cause challenge, the lawyer trying to remove a juror must give a reason to believe the juror won’t be able to reach a fair verdict.
Lawyers can also use a limited number of imperative challenges to reject potential jurors without giving a reason for the rejection. Because lawyers don’t have to give reasons for peremptory challenges, it’s possible that they will use these challenges on the basis of a personal characteristic such as race.
While both the prosecution and the defense have the right to an impartial jury, the Equal Protection Clause of the Fourteenth Amendment protects the right of a criminal defendant to a jury selection process that is free from racial, ethnic, or gender discrimination. In Batson v. Kentucky, the U.S. Supreme Court created a process to determine whether the prosecution has removed a juror due to discriminatory bias. (476 U.S. 79, 89 (1986).) This process, called a “Batson challenge,” involves the following steps.
If the judge decides that the prosecutor sufficiently explained the peremptory challenge, then the defendant must prove that the explanation is disingenuous. Otherwise, the judge won’t find a Batson violation.
In order to show that the prosecutor’s dismissal of a juror was discriminatory, a defendant must show that it was based on race, ethnicity, or gender. (It’s not a violation for the prosecution to dismiss someone because of other characteristics such as religious denomination and social club membership.)
The Supreme Court has refused to specify what facts a defendant must present in order to make the above showing (called a “prima facie case”) of discrimination. Rather, judges must evaluate all the circumstances when deciding whether it appears that discrimination is at play.
Evidence that a prosecutor has made biased statements during jury questioning, asked very different questions of minorities than of white jurors, or used a disproportionate number of peremptory challenges on minorities provides strong support for a prima facie case of jury discrimination. Other factors that will affect a judge’s determination include whether:
If the judge accepts the defendant’s prima facie showing of discriminatory intent, the prosecutor must give a neutral reason for excluding the juror in question.
In order to have a fair jury, both the prosecution and the defense can request the dismissal of potential jurors who show bias during the selection process. Thus, a prosecutor can legitimately seek dismissal of a potential juror who is likely biased and probably won’t be impartial, regardless of that person’s race, ethnicity, or gender.
Since there are many ways in which a potential juror may be biased, there are many legitimate reasons for challenging a juror. These include:
A potential juror’s immaturity, lack of respect for authority, and lack of life experience are also legitimate bases for peremptory challenges.
After hearing from the parties, the judge must decide whether the defendant has proven that the prosecutor discriminated on an improper basis. The judge will evaluate the defense attorney’s and prosecutor’s arguments, including the persuasiveness of the prosecutor’s explanation for the challenge.
If the prosecutor’s reason for removing a juror is unrelated to the facts of the case, the judge will probably find that the challenge was improper. An example is justifying the challenge of a prospective female juror simply by observing that the defense challenged a number of men.
The judge is also likely to reject the prosecutor’s explanation if it involves a gross mischaracterization of a juror’s stated beliefs. This might occur if, for example, a dismissed juror in a capital case clearly expressed that he could impose the death penalty, but the prosecutor claimed that the juror was equivocal on the subject.
It’s important to note that judges afford prosecutors considerable leeway in explaining challenges to jurors. If, for example, a prosecutor mistakenly attributed the statement of one juror to another, the judge may find that there hasn’t been purposeful discrimination. A judge may also determine that a dismissal wasn’t made for discriminatory reasons because the prosecutor accepted other jurors of the same race, ethnicity, or gender as the dismissed juror.
The exclusion of even one juror based on group bias is enough to constitute a Batson violation. The consequences of a violation depend upon when the defense proves it. If the defendant proves a Batson violation during jury selection, the usual remedy is to dismiss the entire panel of potential jurors, declare a mistrial, and select a new jury. Alternatively, a judge can decide to include the challenged juror in the jury, or to give the defendant additional peremptory challenges.
If the Batson violation isn’t proven until after the defendant has already been convicted, then a court of appeal will typically overturn the conviction and grant a new trial.
]]>But some jurisdictions either don't acknowledge or severely limit the psychotherapist-patient privilege (also called the "therapist-patient" privilege in this article) in criminal proceedings. And in many places where the privilege applies to criminal cases, the scope of and exceptions to confidentiality vary. The following is therefore a general discussion of the therapist-patient privilege in criminal cases and some of its features and exceptions, not an exhaustive description of the law throughout the country.
The law of your jurisdiction (either the state or federal government) will define the exact professionals who are bound by the psychotherapist-patient privilege. The privilege often applies to confidential communications in the course of psychotherapy with licensed:
It may also extend to others who provide therapy, such as unlicensed mental health counselors who are supervised by licensed psychologists. (State v. Farthing, 146 Ohio App. 3d 720 (2001).)
The therapist-patient privilege covers statements by patients to their treatment providers during therapy. It generally applies to statements in the context of diagnosis and treatment. It doesn’t apply to conversations outside the therapy context—for example, a discussion between a therapist and patient who are waiting in line at the grocery store. It also probably won't apply if the recipient of the information happens to be a psychotherapist, but doesn’t treat the speaker. As an example, the privilege may not apply to court-ordered mental examinations to determine sanity or competency. (Psychological treatment and testing after litigation has begun are beyond the scope of this article.)
When the therapist-patient privilege does apply, it covers patients’ statements, and often therapists’ diagnoses and notes. It includes recitations of fact, and expressions of emotion and opinion—just about anything the patient says. It can even include admissions of criminal liability: In several jurisdictions, a therapist cannot report someone who confesses to a crime. (United States v. Romo, 413 F.3d 1044 (9th Cir. 2005), United States v. Landor, 699 F. Supp. 2d 913 (E.D. Ky. 2009).)
However, there are scenarios in which mental health professionals either can or must report criminal behavior. And the rules regarding admissions of guilt can vary from one state to another. For example, a homicide confession during therapy might be considered unprivileged.
Almost all legal rules have exceptions—the therapist-patient privilege isn't any different in that regard. Here's an overview of some of its exceptions.
A patient can undo the therapist-patient privilege simply by waiving it. A patient might waive confidentiality, for example, by agreeing to disclosure of mental health records in a lawsuit for emotional distress.
An exception to the therapist-patient relationship in some states involves the patient seeking or obtaining the therapist’s services in order to commit a crime or form of fraud. So, for instance, deceitful statements by a patient to a psychiatrist intended to persuade the latter to prescribe inappropriate controlled substances likely wouldn’t be privileged. That isn’t to say, however, that all statements by that patient over the span of therapy would be admissible in court—probably only those related to the crime. (Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002).)
Most states have an exception to the therapist-patient privilege for dangerous patients, often referred to as the Tarasoff duty. (Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (1976).) Depending on the jurisdiction, the exception either allows or requires therapists to report statements by patients that indicate dangerousness. The law might, for instance, say that therapists must disclose statements when the patient presents a risk of serious harm to others and disclosure is necessary to prevent that harm.
The therapist’s required course of action can depend on the circumstances, and can involve notifying the potential victim, the police, or both. (United States v. Chase, 340 F.3d 978 (9th Cir. 2003).) For instance, if a patient tells her psychiatrist that she plans on shooting her ex-boyfriend, the psychiatrist may have to notify the police and warn the former beau. If the patient is sufficiently mentally ill, the therapist may be required to initiate involuntary commitment proceedings.
In some instances, once the duty to warn has arisen and the therapist has divulged the patient’s statements, those statements may be used at trial. State law can, however, allow the therapist to warn but prevent him or her from testifying at any eventual trial. Indeed, several courts have held that the duty to warn is distinct from the admissibility of the patient’s statements in court—that a therapist must still warn of a dangerous patient but may not testify about the statements causing the warning. (United States v. Ghane, 673 F.3d 771, 786 (8th Cir. 2012).)
Many states have statutes requiring healthcare providers, including mental health professionals, to report any suspected abuse of children, elders, and dependent adults. So, in most cases, therapists who hear admissions of such abuse from patients not only can report their patients’ statements—they must.
If, for example, a man confesses to his therapist that he recently beat his stepdaughter, the psychotherapist-patient privilege as to that confession may well fold. The therapist may have to report the admission to the authorities, and the patient’s incriminating statements may be admissible in court. (Hayes v. State, 667 N.E.2d 222 (Ind. Ct. App. 1996).)
This article doesn’t cover all potential exceptions to the psychotherapist-patient privilege, nor the differences regarding the privilege from one jurisdiction to another. If you are concerned about the potential for disclosure of statements you have made or are considering making during therapy, consult an experienced attorney. Also, you can ask your therapist for an explanation of the confidentiality rules that do—and do not—apply to your treatment relationship.
]]>In general, “voluntary intoxication” describes a situation in which someone drinks alcohol to excess or takes illegal drugs. The resulting intoxication is voluntary in that the defendant chose to consume the substances and had reason to know of their intoxicating effect. (For comparison, see Is Involuntary Intoxication a Defense?)
Legislators and courts have taken the attitude that, by and large, people must be accountable for their actions, regardless of whether they were operating with all their faculties. But courts will, on occasion, allow a defendant to present evidence of intoxication in order to disprove the mental state (“mens rea”) required for an alleged offense.
States like California take the approach that defendants may use voluntary intoxication to argue that they didn’t form the specific intent necessary to commit a particular crime. But it’s a question of fact—someone can be drunk, but nevertheless capable of forming specific intent. Regardless, most crimes don’t require specific intent, just general intent. And voluntary intoxication isn’t a defense to general intent crimes in California and throughout most, if not all, of the country. (See General Intent Crimes vs. Specific Intent Crimes.)
Example 1: Joe and a group of friends are playing cards at his house, in Los Angeles. All of them are drinking beer, but Rob is drinking much more than others. Rob drinks so much that he has to retire from the card game in favor of snoozing on the couch. While the others are still playing, he gets up and goes to use the bathroom. Before getting drunk, Rob had intended to steal Joe's wallet if it he happened to see it laying around. On his way out of the bathroom—at this point drunk—Rob notices Joe's wallet on a banister. He mistakes the wallet for his own because he's drunk, so he picks it up. After being dropped off at home and waking up the following morning, he realizes that he has two wallets: his and Joe’s. Rob isn't guilty of theft by larceny, a specific intent crime that requires that the defendant take someone else’s property while intending to permanently deprive the owner of it. Although he specifically intended to permanently deprive Joe of the wallet at an earlier point in the evening, when he picked up that wallet, he didn't.
Example 2: At the same card game, Rob, still tremendously inebriated, becomes enraged that he is losing. He starts an argument with Joe, then punches him in the face. He has no memory of the confrontation or wanting to hit Joe. Regardless of his level of intoxication—even if it rendered him technically unconscious, Rob is probably guilty of assault. Assault is a general intent crime—all it requires is that the defendant intend the physical act in question. Theft by larceny, on the other hand, requires that the defendant not only act intentionally (in taking property), but also with a specific state of mind (to permanently deprive the owner possession).
Even where voluntary intoxication is a potential defense to specific intent crimes, it often reduces the defendant’s culpability, rather than let him or her off the hook. For example, assume one person, extremely inebriated, attacks another. Drunkenness might have prevented the attacker from forming the specific intent necessary to commit assault with intent to cause great bodily harm. But it probably won’t absolve the assailant of liability for the general intent crime of simple assault.
Some states take a particularly restrictive approach to defenses based on voluntary intoxication. In Alabama, for example, voluntary intoxication can disprove the mental state required for a specific intent offense only if it amounts to insanity. The intoxication must make the requisite mental state “impossible”—it must be so severe that the defendant is “incapable of consciousness that he is committing a crime; incapable of discriminating between right and wrong.” (Hunt v. Comm'r, 666 F.3d 708 (11th Cir. 2012), Green v. State, 342 So.2d 419, 421 (Ala. Crim. App.1977).)
Even in states that don’t require temporary insanity, defendants must typically be really drunk to be incapable of forming specific intent. What’s more, in some states, voluntary intoxication isn’t any kind of defense, even when the alleged crime requires specific intent. (Such states may carve out an exception for intoxication caused by certain prescribed substances; for more on the effect of prescriptions, see Is involuntary intoxication a defense?) (Carter v. State, 980 So. 2d 473 (Fla. 2008).)
If you’ve been accused of a crime you allegedly committed while intoxicated, consult an experienced criminal defense attorney. There are wrinkles in the law on intoxication, and they can vary from state to state. A knowledgeable lawyer can fully advise you of the applicable law and protect your rights.
]]>It’s possible that the police will require a suspect to participate in both a showup and a lineup. They might, for instance, conduct the initial showup, then arrange for a lineup after the filing of charges. At least theoretically, the lineup can substantiate the showup identification and provide a basis to determine whether additional witnesses can also identify the suspect as the perpetrator.
Showups often take place soon after a crime, meaning that memory is less of a problem. But on the other hand, witnesses may still be under great stress when the police return soon after a crime with a suspect in tow. And nothing, short of telling the witness who committed the crime, could be more suggestive than presenting a single, in-custody person for identification. Further, regardless of what police officers say, an unsure witness might feel pressure to point the finger at the person on display.
In a 2017 report, Cal State Los Angeles detailed the results of testing regarding the reliability of showup identifications. In what was reported as a first-of-its-kind experiment, witnesses were led to believe they were part of an actual police investigation and that their identification would result in the arrest of the suspect.
The study had several findings, including the following:
In essence, the study concluded that showups are tremendously unreliable.
Despite the general unreliability, showup identifications can be admitted into evidence in criminal trials. They can be admitted even though the U.S. Supreme Court long ago said, "The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." (Stovall v. Denno, 388 U.S. 293 (1967).)
Lots of factors are relevant in determining whether a showup was too suggestive, including:
On the other hand, courts have held that the mere fact that a suspect is handcuffed during the showup doesn't mean that the procedure was improper.
Consult an experienced lawyer if you have been or might be the subject of an eyewitness identification procedure. A knowledgeable attorney can explain the relevant law, protect your rights, and help determine whether you have a viable challenge to any ID.
]]>The goal of the hearsay rule is to make sure the evidence at trial is as reliable as possible. Criminal defendants face dire consequences, and courts don’t want them convicted on the gossip flying around town. The legal system wants witnesses who have something to say to be in court so that lawyers can cross-examine them and juries can assess their honesty, possible mistakes, and potential bias.
For example, if Bob is on trial for murder, Henry can’t testify that he heard Claire say that before the events in question Bob had a gun and was acting like a maniac. The court needs Claire’s testimony regarding her exact observations, not Henry’s secondhand story about what she allegedly reported observing. Without Claire, the jury can’t get the details of her observations or determine what exactly she meant when she said it. Is she a compulsive liar? Was she joking? Does she hate Bob? Did Henry correctly recite what she said? No one can ask her any of these questions if she’s not in court.
Not every out-of-court statement is forbidden. If the statement is used to prove something besides the content of the statement, it’s not hearsay. For example, if Henry heard Claire call Bob a jerk, Bob’s lawyer can ask Henry to recount the insult in court, not to prove that Bob is a jerk, but to show Claire’s state of mind—that she was angry or that she doesn’t like Bob (assuming these issues are relevant to the trial).
Likewise, Henry could also testify to hearing Claire telling Bob to “watch out” because there’s no fact within the statement to prove or disprove. Rather, the threat is potentially relevant because it might show state of mind, such as Bob being afraid of Claire, Claire disliking Bob, and so on.
The hearsay rule has many exceptions. These exceptions (too numerous and nuanced to list here) allow for the admission of hearsay when the circumstances make that hearsay sufficiently reliable. A couple of the acknowledged exceptions are:
In criminal cases, the Confrontation Clause of the Sixth Amendment often operates in conjunction with the hearsay rule to prevent admission of out-of-court statements. The Confrontation Clause protects the right of criminal defendants to cross-examine witnesses against them. In many cases, both the hearsay rule and the Confrontation Clause can exclude evidence. For example, a court could bar Claire’s statement to a police officer that Bob had a gun and was acting like a maniac with either the hearsay rule or the Confrontation Clause. Even if an exception to the hearsay rule applied, the Confrontation Clause would likely prohibit the officer from testifying to Claire’s statement because Bob didn't have a chance to cross-examine her about it.
]]>“Rape shield” laws are designed to protect the victims of sex crimes during criminal proceedings. With very limited exceptions, they prevent defendants from introducing evidence of victims’ sexual behavior, history, or reputation.
In the past half century, the law in every state has evolved to prevent defendants in sex cases from smearing the reputations of alleged victims.
Traditionally, a defendant was allowed to present evidence of the victim’s sexual activity to the jury. Defendants painted victims as immoral and unchaste. They mounted character attacks on the theory that the victim’s sexual profile was relevant to the crime—if she was impure, how could she be trusted?
In the late 1970s into the1980s, states began to protect alleged victims of sex crimes. Lawmakers recognized that victims experienced humiliation and embarrassment when they reported rapes and other sex crimes. Ultimately, they had a strong disincentive to report the offenses they suffered.
Lawmakers also recognized that the character, morality, and sexual history of a victim are largely irrelevant to a sex crime trial. The rape shield laws they enacted essentially apply the usual rules of evidence: Evidence that isn’t reasonably related to the charges and that amounts merely to character evidence won’t come in at trial.
HOLDING UP THE SHIELD
Suppose Dave is on trial for the alleged rape of Vicky. His defense is that she consented to intercourse. Dave wants to introduce evidence of Vicky’s sexual experiences with other men and her reputation for promiscuity. His theory is that these bits of evidence will help show that it was unlikely that Vicky would say “no” to him.
What Dave hopes to offer is classic character evidence that a rape shield law will prohibit. If he had tried to offer evidence of his past sexual experiences with Vicky, the court might—but might not—admit it. If he offered it to provide context for the events in question, not to assail Vicky’s character, then he would have a better chance.
Defendants have challenged rape shield laws on a variety of grounds—they’ve argued that these evidentiary rules violate the right to confront one’s accuser and the right against self-incrimination, and that they are too vague. They've also argued that the laws discriminate unfairly. Courts have overwhelmingly rejected these challenges.
The Constitution guarantees a defendant the right to confront the victim, or accuser, at trial. Defendants have argued that rape shield laws abuse this right by hiding victims’ previous sexual behavior. But, indicative of the nationwide approach, an Illinois court held that a defendant’s right to confrontation doesn’t include a right to present irrelevant evidence such as the victim’s reputation and sexual acts with other people. (People v. Cornes, 80 Ill.App.3d 166 (1980).)
Many rape shield laws allow defendants to present evidence of the victim’s sexual behavior and reputation to the court prior to trial so that the judge may decide whether to admit it. A defendant in this situation must show the judge that the victim’s past and reputation relate directly to the charges.
At the same time, the Fifth Amendment protects defendants from being compelled to incriminate themselves. Defendants have claimed that the rape-shield system of evidence disclosure—which requires them to reveal evidence in advance of trial and potentially admit to certain conduct—requires self-incrimination. But courts have had little patience for such challenges, nearly universally denying them. For instance, a court in California upheld a law requiring an out-of-court hearing to determine whether to admit character evidence relating to the victim. (People v. Blackburn, 56 Cal.App.3d 685 (1976).)
Defendants have also claimed that rape shield laws are so vague that there is no way to apply them fairly. In California, a court disposed of that argument by pointing out that the legislature laid out procedures to determine the admissibility of evidence of the victim’s character. (Id.) Similarly, a Kansas court decided that the term “sexual conduct” in the relevant law was sufficiently precise for a common person to understand. (State v. Carmichael, 240 Kan. 149 (1986).)
Defendants have also claimed that rape shield laws violate the 14th Amendment’s Equal Protection Clause because they affect men more than women. But courts have reasoned that rape shield laws are similar to laws prohibiting rape itself, and no one would argue that those laws unfairly prejudice men.
Rape shield laws have brought the rules related to sex crimes in line with the rules of evidence that apply to all other criminal trials. If a defendant can show that evidence of a victim’s character, reputation, or sexual history is relevant to the charges, the court will probably allow it. For example, if the defendant claims that the alleged victim received the injuries in question during a sexual encounter with another man, evidence of that encounter might be admissible.
But getting past rape shield laws is tough because of their design—to prevent victims from experiencing public shame for having reported their ordeals.
If you face charges for a sex crime or any other offense, consult an experienced criminal defense attorney immediately. That lawyer can advise you of the applicable law and protect your rights.
If you have been the victim of a sex crime, even if you have already reported it, there are many resources to help you deal with this ordeal. (When looking for help, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can and should do to prevent someone else from learning that you’re doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser, or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.)​
For information, consider sites like Rape, Abuse & Incest National Network (RAINN), the U.S. Department of Justice’s crimevictims.gov, and the National Sexual Violence Resource Center (NSVRC).
If you have already reported the crime, ask for help and information from the office prosecuting it; you can also seek the same from the law enforcement agency that is investigating the offense. Also consider consulting the website for the jurisdiction in which the crime occurred, such as your county’s official site.
]]>(For further information on this topic, see also Invoking Your Right to Remain Silent.)
Courts have explained that the privilege of silence is designed to avoid the “cruel trilemma” of perjury, contempt, and self-incrimination. In other words, someone who might have committed a crime and who is forced to answer questions about the conduct in question has to choose between:
Beyond the trilemma, courts have discussed three broader concepts underlying the Fifth Amendment.
Reliability. The theory is that compelled testimony is inherently unreliable. For example, an innocent person who can be forced to talk might confess for the simple goal of putting an end to an interrogation.
Coercion. The idea here is that law enforcement officers would use coercion, if not outright torture, if they knew that any admission they could extract would be admissible in court.
Adversarial system. Our legal system is founded on adversarial, rather than inquisitive, proceedings. That means that it’s the government’s burden, not the defendant’s obligation, to provide evidence of guilt.
]]>“Burden” and “standard” of proof are sometimes used interchangeably, but this article explains the important distinction between them.
In each case, one side has the “burden of proof.” Having this burden means the party must prove its case to the “trier of fact”—the judge or jury, whoever is weighing the evidence. So, the party with the burden must produce evidence in support of their case. The standard of proof, on the other hand, refers to how convincing that evidence must be (more on that below).
Sometimes, the burden of proof can shift from one side to the other during a hearing or a trial depending on the kind of case.
The burden of proof is normally on the party trying to get the judge or jury to do something. Here’s how it works in common types of cases:
Criminal cases. In a criminal trial, the state (represented by the prosecutor) is trying to do something—convict the defendant of a crime—so they have the burden of proving the defendant committed the crime. Because the state has the burden, the defendant doesn’t have to produce any evidence at all; if the government hasn’t met its burden, the defendant can just rely on that fact. Of course, in many cases, defendants do choose to present evidence to rebut the prosecution’s case. And in many states, when the defendant raises affirmative defenses, they have the burden of proving those defenses (but by a lower standard than the state must meet).
Most civil cases. In civil trials involving most types of lawsuits, the plaintiff is trying to do something—get money for injuries or enforce a contract, for example. So, they have the burden to prove the claims in their lawsuit. Just as in criminal cases, if they don’t meet their burden, they won’t win, even if the defendant presents no evidence. Also similar to criminal cases, when defendants raise certain types of affirmative defenses, they usually have the burden of proving them.
The standard of proof refers to the extent to which the party with the burden of proof has to prove its case (or an element of its case). The higher the standard of proof, the more difficult it is for a party to meet their burden of proof.
In general, the higher the stakes are, the higher the standard of proof will be. So, a prosecutor in a criminal case has to meet a very high standard of proof, because a defendant’s liberty is on the line. On the other hand, someone suing over a property dispute has a fairly low burden of proof because the stakes, while significant, aren’t nearly as high.
The following are some examples of some common standards of proof:
Proof beyond a reasonable doubt. Because people can be incarcerated (and in rarer cases, put to death) if they’re convicted of a crime, the prosecution faces the highest standard of proof required in the American legal system: proof beyond a reasonable doubt. Though states vary in how they define this standard, it’s universally considered the toughest standard to meet.
Preponderance of the evidence. The most common civil standard of proof is “preponderance of the evidence” (meaning more likely than not). This standard is much lower than beyond a reasonable doubt because generally, disputes between people (or businesses) about money, contracts, property rights, and similar issues don’t involve the state trying to take away someone’s freedom. The preponderance of the evidence standard can also apply to certain aspects of a criminal trial. For example, when the defendant raises an affirmative defense, they often have to prove the defense only by a preponderance of the evidence (and some states have an even lower standard for defenses).
Clear and convincing. Some particular types of cases that are civil in nature but involve very important rights require "clear and convincing" evidence. This standard of proof is higher than a preponderance of the evidence but lower than proof beyond a reasonable doubt. Often, these cases involve the state trying to do something that affects someone's rights. For example, when a social services agency tries to take children from their parents, the agency usually must prove the parents are unfit by clear and convincing evidence.
Learn more in Standards of Proof at Trial.
]]>(For an important distinction in legal terms, see “What’s the difference between the burden of proof and the standard of proof?”)
STANDARDS BEFORE TRIAL
Some legal standards aren’t used by jurors at a trial, but by judges who must make determinations at pretrial hearings. In criminal cases, two such standards are reasonable suspicion and probable cause. These standards are most often at issue when defendants file motions to suppress evidence. Preliminary hearings also involve a determination of probable cause.
At an administrative hearing, an administrative law judge (ALJ) reviews the decision of a government agency, such as the DMV or an unemployment agency. A citizen affected by the decision brings a challenge, and the ALJ reviews the decision. Appellate judges who in turn review administrative judges’ decisions often use the "substantial evidence" standard. This standard falls between probable cause and preponderance of the evidence, and requires more than a “mere scintilla of evidence.” Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (Richardson v. Perales, 402 U.S. 389 (1971).)
The preponderance-of-the-evidence standard is the default for most civil lawsuits. In these cases a plaintiff is typically suing a defendant for lost money because of acts like breaking a contract or causing a car accident (the money loss might be due to vehicle damage and medical bills, for example). Preponderance of the evidence is met if the trier of fact (judge or jury) believes the evidence shows the defendant is more likely than not—more than 50% likely to be—responsible.
The clear-and-convincing-evidence standard goes by descriptions such as “clear, cogent, unequivocal, satisfactory, convincing” evidence. Generally, this standard is reserved for civil lawsuits where something more than money is at stake, such as civil liberties. Examples include:
(Conservatorship of Wendland, 26 Cal. 4th 519 (2001); Santosky v. Kramer, 455 U.S. 745 (1982).)
“Clear and convincing” means the evidence is highly and substantially more likely to be true than untrue; the trier of fact must have an abiding conviction that the truth of the factual contention is highly probable. (Colorado v. New Mexico, 467 U.S. 310 (1984).
”Beyond a reasonable doubt” is the highest legal standard. This is the standard the U.S. Constitution requires the government to meet in order to prove a defendant guilty of a crime. (In re Winship, 397 U.S. 358, 364 (1970).)
Courts over the years have debated the extent to which the government has to prove its case to meet this high standard. But it’s clear that, according to the standard, it’s not enough for the trier of fact to simply believe the defendant is guilty. Rather, the evidence must be so convincing that no reasonable person would ever question the defendant’s guilt. The standard requires that the evidence offer no logical explanation or conclusion other than that the defendant committed the crime. Courts sometimes describe this level of confidence in a verdict as a moral certainty.
“Beyond a reasonable doubt” doesn’t mean, however, that the prosecution must eliminate all unreasonable doubts a jury could possibly have. Nor must the prosecution prove the case beyond a shadow of a doubt or to an absolute certainty. These would be impossible burdens because only witnesses to an alleged crime can be certain—and even then, not all witnesses can be certain. Rather, this highest of standards requires—after consideration of all facts—only one logical conclusion: that the defendant is indeed guilty.
]]>(For another angle to this right, see Immunity From Prosecution. Also, see Can one person claim the Fifth Amendment on another’s behalf?)
Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings). But interestingly, if the witness fears exposure to prosecution in a country other than the United States, the privilege does not apply. (U.S. v. Balsys, 524 U.S. 666 (1998).)
Not every disclosure can be the subject of a Fifth Amendment assertion—only those that the witness “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” (Kastigar v. U.S., 406 U.S. 441, 444-445 (1972).) The key word here is “reasonably.” Responses to questions that would be of no use to prosecutors, or that couldn’t contribute to a prosecution because of the passing of the statute of limitations, cannot take refuge within the Fifth. But if the prosecution can make use of the answer itself or any evidence it might lead to, the witness is entitled to claim the privilege against self-incrimination.
Often, witnesses are involved in two cases at the same time: one civil and one criminal. For example, a witness might be called to testify before a governmental body while a criminal case against her is in the investigative stages. The witness’s lawyer will likely advise her to invoke the Fifth Amendment. Why is this a good idea?
First, because the potential consequences of a criminal proceeding (including jail or prison) are more dire than those of a civil case, a witness may be able to get a judge to “stay,” or postpone, the civil matter until the criminal one is concluded. Even if there’s no stay, a witness is usually better off asserting the privilege if truthful answers will tend to incriminate her with respect to the criminal case.
There’s a real risk that innocent mistakes or omissions in a civil matter that’s held before the completion of a criminal investigation will come back to haunt the defendant. It’s even possible that a mistake in a civil proceeding will lead to a prosecution, not just for the underlying criminal act but also for being untruthful, in which case eventual charges might include obstruction of justice or even perjury.
A witness can waive (give up) the right to invoke the Fifth by later making statements about the topic in question. For example, if a witness invokes the Fifth but goes on to selectively answer questions about the same subject matter, a judge might decide that the later answers invalidate the initial waiver. But judges are hesitant to declare the privilege waived because of its importance. For instance, a brief and general statement about one’s innocence, following invocation of the Fifth, probably won’t constitute a waiver.
Importantly, even if a judge finds that a person waived the privilege, that waiver will extend only to the current proceeding. A witness who answers questions subsequent to invoking the Fifth, who is ordered by a judge to continue answering based on the waiver, can reassert the privilege in a later, different proceeding. For example, a defendant who waives the privilege while testifying in one case can assert it when called to testify in another.
Additionally, a witness can begin testifying but invoke the privilege when answers to later questions would be incriminating. If the prosecutor commences by asking benign questions that the witness answers (“What were you wearing that night?”) but moves into questions that go to the heart of the matter (“How many times did you meet with the defendant?”), the witness may claim the privilege.
At first blush, it might seem that whenever answers to questions might incriminate oneself, it makes sense to decline to answer. Many times claiming the Fifth is the best course of action, but there may be instances when it will do more harm than good. For example:
Yet, a witness who could claim the Fifth but is tempted to answer should first discuss the issue thoroughly with an attorney. Suppose a witness in a civil case may be able to supply credible answers that could form the basis for a strong defense against a future criminal proceeding. A prosecutor confronting these convincing, under-oath answers might decide not to file charges. Of course, if the witness fibs, omits something, or gets confused on cross-examination, she may doom herself. That’s why the guidance of a knowledgeable attorney is crucial.
The decision as to whether to invoke one’s Fifth Amendment right against self-incrimination in a civil or criminal proceeding is very complicated, involving an assessment of both the facts and the relevant law in your jurisdiction. Only careful discussion and preparation with your lawyer will enable you to make a wise decision. Never head into a situation where testimony could end up hurting you without professional advice.
]]>Defendants have argued that forcing them to turn over evidence to the prosecution in advance of trial violates their Fifth Amendment right to silence and the privilege against self-incrimination. But courts have upheld so-called reciprocal discovery laws. (It’s worth noting that in many cases, specifically those that settle well before trial, the defense doesn’t end up turning anything over to the prosecution.)
Each jurisdiction has its own reciprocal discovery rules. Here are partial examples of the kinds of information defendants routinely must disclose:
It used to be that defense attorneys could hide the ball, then spring evidence and witnesses on the prosecution at trial. The theory was that the government had all the power and the defense should be able to employ the scant advantages it had. But that changed in relatively recent years. If anything, legislatures are likely to enact more discovery requirements for the defense—and judges are likely to uphold them. Part of the rationale for more discovery is that it facilitates a quicker resolution of cases. The more the parties know, the better they can prepare for plea negotiations or trial.
]]>Example: Ruby Ridge is charged with stealing costume makeup from a drugstore the night before Halloween. The prosecution wants to offer evidence that Ruby’s mom had refused to buy her a Halloween costume. The evidence is relevant to prove that Ruby had a motive for stealing the makeup.
Example: Same case. The prosecution also wants to call the drugstore manager to testify that the makeup department suffers more thefts than any other department of the drugstore. This testimony would be irrelevant because it does not relate specifically to Ruby.
Example: Lance Sellot is charged with drunk driving. The prosecution wants to offer evidence that Lance is a member of a violent street gang. The evidence is irrelevant because the crime charged has nothing to do with gang activities. The evidence would only serve to stir up bias against Lance.
Example: Clare Voyant is charged with car theft. She was arrested in her home, and the prosecution wants to offer evidence that the arresting officer found marijuana and an unregistered handgun there. Unless the prosecution can establish that the gun and drugs were somehow involved in the theft, there’s nothing to connect them with the crime. Again, the evidence would do almost nothing other than predispose the judge or jury against the defendant.
Evidence has to be relevant to have any chance of admissibility, but not all relevant evidence is admissible. Judges often exclude relevant evidence because of some other evidence rule. For example, evidence that is relevant may be likely to unfairly arouse the jury’s emotions. In such situations, the judge is supposed to balance the importance of the evidence against the risk of an unfair appeal to emotion. If the judge determines that the risk of unfair emotional appeal substantially outweighs the relevance, the evidence won’t come in. Otherwise, it will.
Example: Kai Ping is charged with assaulting Kevin Pong with a knife; Ping claims self-defense. The prosecution seeks to offer into evidence (a) the knife allegedly used in the assault, (b) a photograph of Pong taken minutes after the fight, showing cuts on his face and arms, and (c) the blood-soaked T-shirt that Pong was wearing at the time of the fight. A judge is likely to admit the knife and the photograph into evidence, but might exclude the shirt as unduly prejudicial. The size and shape of the knife and the nature of Pong’s injuries are rationally related to the issue of whether Ping or Pong was the aggressor in the fight. But, if the shirt doesn’t provide much information about how the events unfolded, the judge will likely exclude it because of its potential to shock and disgust the jury.
]]>Under the Sixth and 14th Amendments to the U.S. Constitution, a criminal defendant in a jury trial is entitled to a fair and impartial jury. (Morgan v. Illinois, 504 U.S. 719 (1992), Duncan v. Louisiana, 391 U.S. 145 (1968). See The Right to Trial by Jury.) Therefore, if any member of a jury engages in behavior that prevents a defendant from receiving a fair and impartial trial, that misconduct must be corrected; otherwise, the trial is unconstitutional.
An issue that sometimes arises is whether a defendant should get a new trial when jurors sleep or otherwise don’t pay attention in court. For example, if a juror slept through the testimony of the defendant’s alibi witness, or was writing a letter to a family member and didn’t hear the judge’s instructions on a point of law, is the defendant entitled to the juror being removed from the case – or perhaps even a new trial?
Defendants who allege misconduct based on juror inattentiveness must show that:
Defendants should present evidence that a juror is sleeping or inattentive as soon as possible. Courts usually won’t grant a motion for a mistrial or new trial if the defense knew that a juror was sleeping or inattentive but didn’t bring it up until the end of trial.
While sleeping is the most obvious impediment to paying attention, problems also occur when jurors only partiallypay attention. For example, courts have found misconduct when jurors were reading, doing crosswords, writing letters, texting, and using social media. In contrast, momentary “dozing” and “head nodding” usually doesn’t rise to the level of misconduct.
Defendants often try to prove juror inattention through affidavits or statements from people who observed the juror’s behavior (like bailiffs, witnesses, and other jurors). Defendants who notice this kind of misconduct during trial are supposed to ask the judge to question the juror directly (referred to in court as “voir dire”) about whether the juror was sleeping or not paying attention.
Once a defendant has established that a juror was sleeping or inattentive, he must prove that the juror’s conduct was likely to affect the outcome of the case. The defendant should explain what specific information the juror missed and why that information was critical. Simply stating that the information was “crucial” isn’t enough to show prejudice. Examples of critical parts of trial include:
A court will evaluate a defendant’s claim of juror misconduct in light of all the circumstances of the trial. Most requests for a new trial based upon juror misconduct fail because it is often very hard for a defendant to meet the prejudice standard. For example, if a juror slept through one portion of closing argument, but the lawyer repeated the missed information later in the argument, the court would likely find that the defendant was not prejudiced. The judge would probably rule similarly if a juror was caught doing crosswords during the testimony of an expert witness, but could show that she knew and understood the expert’s opinion.
When a defendant raises the issue of juror inattentiveness, a court will typically ask the prosecutor whether he also noticed the juror’s allegedly inattentive behavior. The prosecutor has the right to object to any proposed remedies for juror misconduct.
Although the Sixth Amendment right to a fair and impartial jury specifically protects the defendant, not the prosecutor, prosecutors can also raise the issue of juror inattentiveness and request that the court remedy the problem.
If the defendant does manage to convince the court that a sleeping or inattentive juror prejudiced her case, there are a number of possible remedies, including:
During a trial, a person may not communicate with a juror about anything related to the substance of the case. No matter how they do it, people who try to influence jurors are guilty of jury tampering. A classic example of tampering is bribing or threatening a juror to decide a case a certain way. More subtle examples are leaving jurors anonymous notes, slipping them photographs, and telling them information that’s been excluded at trial.
Courts don’t want outside information or opinion about a case to influence jurors; cases are supposed to be decided on the facts as presented at trial, not on potentially unreliable, uninformed, and unchallenged information coming from elsewhere.
During a trial, jurors are instructed not to discuss the case with anyone outside of the courtroom. To break this rule is to commit juror misconduct, which might get the juror dismissed from the jury, but generally isn’t a crime.
Improper juror influence can occur without jury tampering—or even jury misconduct. Neither tampering nor misconduct has occurred if the juror follows the judge’s instructions and no one tries to assert sway over the juror. But improper influence can nevertheless happen. An example is a juror accidentally overhearing a conversation about evidence the judge ruled inadmissible in the trial.
If a juror has been influenced by outside information as a result of jury tampering, juror misconduct, or simple mistake, then the judge might declare a mistrial and grant the defendant a new trial. But proving that a juror has been illegally influenced can be difficult.
Courts don’t like to dig into a jury’s verdict. What happens in the deliberation room is supposed to stay there. Thus, the only evidence of juror impropriety that a court will usually consider is an external communication or influence; anything that is internal to the jury, including discussions and thought processes, is generally off-limits. For example, Juror Jane is eligible to testify that someone outside of court told her that the defendant had a violent history; the out-of-court statement is an external influence. However, evidence of what effect this statement had on her vote would not be admissible; her thought process in this regard is internal to the jury.
If a court hears evidence of an improper influence on a juror, it will try to determine whether that influence was likely to actually affect the juror’s verdict. Not every instance of an improper influence or jury-tampering leads to a new trial. So, for example, if a juror acknowledges that someone simply told her that the defendant looked guilty, the court probably won’t overturn the verdict. But evidence that a juror received cash payments in exchange for finding the defendant guilty will likely spur the court into action.
]]>Even identifications that sound quite convincing can be mistaken. The human memory doesn’t act like a machine, accurately recording, storing, and retrieving images on demand. Eyewitnesses, like all of us, construct and interpret what they as they see it. And the construction and interpretation process occurs well past the event itself. As one expert puts it, “Some memories are elaborations created by witnesses over time based on their own rationalizations for what must have happened and suggestions from others.” (Geiselman, Eyewitness Expert Testimony, pp. 74-75, Eagle Publishers, 1995.)
Some of the factors associated with mistaken identifications are matters of common sense and everyday experience. For example, all of us recognize the difficulty of making an accurate identification based on a “quick glance” as opposed to a “long look.” Similarly, you don’t have to be a cognitive scientist to know that lighting, distance, and the witness’s physical condition (for example, fatigued) can also compromise an identification. But here are some of the less obvious factors that have led eyewitnesses to make mistakes:
Stress. While many people tend to believe that “stress sharpens the senses,” research consistently shows that people who are under stress when they observe an event are more likely to misidentify the culprit.
Presence of a weapon. Eyewitnesses confronted by a weapon are apt to focus on the weapon rather than the person holding it.
Confidence level. Eyewitnesses who express great confidence in their identifications are no more accurate than those who admit to uncertainty. Confident eyewitnesses sometimes have higher error rates.
Cross-racial identification. Eyewitnesses are less accurate when asked to identify someone of a different race. This factor affects members of all racial groups.
Pressure to choose. Eyewitnesses are more likely to make mistakes when they feel pressure to make an identification, even if they are told that they don’t have to make a choice.
Influence after the fact. Eyewitnesses are more likely to make mistakes when they rehash events with other observers. In these situations, witnesses may alter their memories so that they can be in agreement with others.
Transference. Eyewitnesses may make a mistaken identification because they saw the person they identify on a different occasion.
Multiple perpetrators. Identification accuracy decreases as the number of people involved in an event increases.
Absence of an “employment boost.” Eyewitnesses who regularly interact with the public (store cashiers, bank tellers) are no better at making identifications than other people.
Many cognitive psychologists not only do research experiments, but also testify as expert witnesses at trial. Based on the factors surrounding the commission of a crime, they can testify to how those factors might have affected eyewitness’s ability to make an accurate identification.
Defendants who can’t afford to hire a cognitive psychologist as an expert may ask a judge to appoint an expert at government expense. However, few court systems have enough money to allow judges to appoint eyewitness identification experts in every case in which their testimony is relevant. A less expensive option is for a judge to give a jury instruction that summarizes factors that might affect eyewitness accuracy.
When they testify at trial, eyewitness identification experts don't usually opine as to whether the identifications in that case are accurate. Qualified experts can “educate the jury” by talking generally about factors that studies have shown tend to lead to inaccurate identifications. But experts have no way of assessing whether a particular eyewitness is accurate.
Example: Sal Mander, a Caucasian male, is on trial for robbing Delores, an African American female. After Delores identifies Sal as her attacker, Mander’s eyewitness identification expert testifies about factors that existed at the time of the robbery that might cast doubt on Delores’s ability to observe and recall accurately. However, the expert probably cannot testify, “In my opinion, there’s less than a 50% chance that Delores’s identification is accurate.” Eyewitness identification experts can talk about factors that have been associated with mistaken identifications in experiments, but they themselves admit that they cannot authoritatively determine the accuracy of a particular identification.
The testimony of eyewitness identification experts can aid jurors in understanding the psychology of mistaken identifications, but jurors ultimately have to try to decipher the accuracy of an identification on their own. Given what we know about the vagaries of eyewitness ID, this can be a difficult task.
]]>Police officers and often a prosecutor attend lineups. A defense attorney may be present as well, because a suspect who has been formally charged with a crime has a right to be represented by a lawyer at a lineup. (Kirby v. Illinois, 406 U.S. 682 (1972).) In large cities, public defender offices may have an attorney available to attend a lineup 24/7. The defense lawyer may also bring an investigator, a paralegal, a law clerk, or another observer to act as a witness in a later court hearing in case the lineup procedures are unfair to the defendant. To avoid having a defense lawyer present, an officer may try to convince a suspect to participate in a lineup voluntarily before the filing of charges.
The police can typically force someone who has been arrested to participate in a lineup. Judges don’t consider this a violation of the Fifth Amendment privilege against self-incrimination because, in a lineup, suspects don’t provide “testimony.” (United States v. Wade, 388 U.S. 218 (1967).)
As a condition of granting bail or OR release, a judge may require a suspect to participate in a lineup. However, being released from jail may reduce a suspect’s chance of having to participate in a lineup because of the logistics of arranging it.
Unless they have a court order, the police cannot compel suspects who have not been arrested to participate in a lineup. The police may ask such suspects for voluntary participation, arguing that “this is our chance to clear you.” But even those who are confident of their innocence should think carefully—and talk to a lawyer—before agreeing to participate in a lineup voluntarily. After all, witnesses make mistakes. (See The Psychology of Eyewitness Identification.)
Laws in many states give suspects the right to demand a lineup. But suspects should think carefully—and, again, talk to an attorney—before doing so. The advantage of participating in a lineup is that eyewitnesses’ failure to make a positive identification may cause the police to focus their investigation elsewhere. The disadvantage of mistaken identification is the flip side. (The defendant might also accidentally provide fodder for the prosecution in the course of the events surrounding the lineup—for example, by making a comment that turns out to be incriminating.)
One-way mirrors or bright lights typically make it impossible for suspects to see witnesses. Even if contact is possible, suspects definitely shouldn’t try to talk to or otherwise interact with witnesses. Even a plaintive “Tell them I’m innocent” may lead to additional scrutiny from the witness and officers. The police may even construe a suspect’s attempt to talk to a witness as intimidation and cause the suspect to be charged with a separate crime!
The police can generally dictate what participants wear and say during a lineup. Dressing the lineup participants as the culprit was dressed, and having them speak words that the culprit used, can increase the likelihood that an eyewitness’s identification (or failure to identify) is accurate. Of course, for the lineup to be fair, conditions must be the same for all participants.
Example: Ann Ekdote is arrested for burglarizing a home. Wilma, the next-door neighbor, tells the police that the burglar was a woman who wore large sunglasses, carried a big shopping bag, and yelled “It’s all mine!” while running out of the house. The police arrest Ann and ask Wilma to view her in a lineup. The police can dress Ann in large sunglasses and have her carry a big shopping bag if the items match Wilma’s description, as long as all of the lineup participants are displayed to Wilma in the same way. They can also require each participant to yell, “It’s all mine!” Because the other participants will do as the police request, Ann is likely to draw more attention to herself by refusing to repeat the words (or by whispering them). Moreover, the prosecution can use Ann’s refusal as further evidence of her guilt at trial.
Always enforce your right to counsel when facing a lineup request—or any other entreaty—from police. You should consult a knowledgeable lawyer before making any critical decisions in a criminal case. Your attorney can advise you of the nuances of the law, including how they apply to the facts of your case.
]]>“Redirect” and “recross” examination are just what they sound like—the lawyers’ chances to question the witness again, before that witness finishes testifying. Judges have a great deal of leeway in deciding what kinds of questions to allow on redirect and recross. Generally, though, redirect is designed for clarification of the witness’s testimony on cross or to address any subject matter discussed on cross that wasn’t mentioned on direct. In turn, recross presents an opportunity for the other lawyer to address the subject matter discussed in redirect, particularly anything that’s new.
Judges sometimes allow the lawyers more than two chances at direct and cross-examination. (Thankfully, these chances aren’t called “re-re-direct,” “re-re-cross,” and so on—just “redirect” and “recross”).
Consider the following example:
The opening statement allows both sides to give the judge and jury an overview of the case, including what they plan to prove and how they plan to prove it (what evidence they will offer in support of their claims).
Prosecutors and defense attorneys generally have considerable latitude in what they’re allowed to say in opening statement. That said, they’re not allowed to “argue” (argument is saved for closing), nor are they allow to refer to inadmissible evidence or facts they don’t intend to or can’t prove.
The following are examples of opening-statement comments that courts have found improper:
On the other hand, courts frequently allow lawyers to push the boundaries of acceptable opening-statement remarks. Consider the following comments, which appellate courts validated:
If a lawyer goes too far astray in an opening statement, opposing counsel can object—if the objection is proper, the judge will cut off the lawyer and potentially admonish the jury not to consider what he or she just said. The judge will probably let the lawyer resume the opening statement, but intervene if it gets off track again.
]]>For information on immunity generally, see Immunity in Exchange for Testimony. Also, see Limits on Witness Immunity.
A witness who refuses to testify after being given immunity can be held in contempt of court and subjected to fines and jail time. And even after a grant of use and derivative use immunity, the witness isn’t necessarily in the clear: The prosecution can still go after the witness. That said, once the prosecution has granted immunity, it’s limited in how it can use that testimony in the future. If the prosecution eventually seeks an indictment against an immunized witness, the prosecutor and law enforcement must show that the case is based solely on evidence that’s independent of the witness’s immunized testimony.
A witness who is being prosecuted and intends to claim immunity from prosecution must provide evidence that the prosecution granted immunity and that the testimony in question relates to the current charges. After that, the burden of proof goes to the government.
Prosecutors must show that all of the evidence they intend to use comes from an independent source. If the prosecution had access to the immunized testimony, it must reveal how it developed independent evidence against the defendant. It’s not enough for the prosecution to simply deny using the immunized testimony—it must present evidence (either written or oral statements) explaining how the evidence doesn’t emanate from the defendant’s previous testimony. However, it’s okay if the prosecution had tangential knowledge of the immunized testimony.
If a judge rules that prosecutors have improperly used immunized testimony, the usual remedy is to block them from using it at trial. If there’s no evidence that’s entirely distinct from the immunized testimony, the court will dismiss the case.
Immunity is a privilege; the immunized person can therefore waive it. One way is to explicitly state the intention to waive the privilege. For example, a witness who has received immunity may sign a written statement to the court waiving immunity and acknowledging that he is now subject to prosecution. Waiver also happens when a witness has immunity, but doesn’t assert it in a timely manner—for example, by freely giving a statement to the police after receiving Miranda warnings, not mentioning that he has immunity until trial.
A witness can also waive any chance at immunity before receiving it. This happens when a witness testifies voluntarily without the protection of immunity.
Once a person has waived immunity, the government can use the previously immunized testimony to prosecute him or her.
If you’ve been asked to or think you should testify or otherwise cooperate with the authorities, consult an experienced criminal defense lawyer. Only such a lawyer can explain the ins and outs of immunity, make sure that you don’t waive it if you have it, and otherwise protect your rights.
]]>(For related information, see What Immunity Means for a Witness and Limits on Witness Immunity.)
A witness who is asked to provide information that could be incriminating in any way can invoke the Fifth Amendment privilege and refuse to answer. Incriminating questions require a witness to give answers that could be used to convict the witness of a crime. A question is incriminating when it calls for an answer that provides either:
But even if a witness invokes the Fifth Amendment privilege, a prosecutor can override the privilege by giving the witness immunity from prosecution in exchange for testimony.
There are two basic types of immunity from prosecution.
Transactional immunity is the broadest type of immunity; it offers complete protection from future prosecution for any matter mentioned in the immunized testimony. Because it’s so broad, transactional immunity is also commonly referred to as “total” or “blanket” immunity.
Although transactional immunity offers the most protection for a witness, it doesn’t prevent prosecution for criminal activities that are unrelated to something discussed in the immunized testimony. And transactional immunity isn’t always available—for example, the federal system doesn’t use it.
To illustrate, suppose Witness and Defendant commit an armed bank robbery. The prosecution grants Witness transactional immunity in exchange for admitting his participation in the robbery and testifying against Defendant at Defendant’s trial. During his testimony, Witness reveals that he used his portion of the money stolen from the bank to purchase cocaine from Dealer.
Can Witness be successfully prosecuted for bank robbery? No. The grant of transactional immunity protects him.
Can Witness be successfully prosecuted for buying cocaine? No. Transactional immunity guarantees that Witness cannot be prosecuted for any criminal activity he discussed during his immunized testimony.
What if the prosecution learns elsewhere about a different drug purchase? If, after Witness testifies in Defendant’s trial, the prosecution learns from Dealer that Witness came to him two months before the bank robbery and purchased heroin, Witness won’t be so fortunate. The prosecution can charge him for that purchase because it’s unrelated to the events Witness testified to: The purchase of heroin occurred before the bank robbery and was unrelated to either that crime or the cocaine purchase he mentioned.
Use and derivative use immunity is more common (used by both state and federal prosecutors) and narrower than transactional immunity. It prevents the prosecution from using the witness’s statements (“use”) or any evidence derived from those statements (“derivative use”) against the witness in a criminal prosecution. In theory, use and derivative use immunity provides as much protection as the witness not testifying.
However, use and derivative use immunity doesn’t prevent prosecutors from gathering additional, independent evidence to later use against a witness. If, while testifying, a witness gives an indication of having committed a crime and the prosecution obtains independent evidence of that crime (from a source distinct from the witness), then the witness is subject to prosecution for that crime.
For example, suppose the prosecution grants Witness use and derivative use immunity for testifying in Defendant’s armed robbery trial. Witness states that after he and Defendant robbed the bank, he took some of the stolen money and used it to buy 100 kilograms of cocaine from Dealer. Witness then sold the 100 kilograms of cocaine to Buyer.
Can the prosecution get Witness for armed robbery? Yes, but the prosecution cannot use Witness’s immunized testimony against him. It must rely on independent evidence that Witness robbed the bank—for example, a tip from someone who saw the crime take place.
Can the prosecution go after Witness for cocaine sale? Suppose Addict was present when Witness sold the cocaine to Buyer. Addict is later arrested and reveals that he saw this sale. In that scenario, the prosecution has proof of the sales crime from an independent source (Addict). The prosecution can use Addict’s testimony to prosecute Witness for the crime.
If you’ve been asked to or think you should testify or otherwise cooperate with the authorities, consult an experienced criminal defense lawyer. Only such a lawyer can explain the ins and outs of immunity and otherwise protect your rights.
]]>Preservation of evidence means the government must maintain the integrity of the evidence for later testing or analysis. To do this, property and evidence custodians must keep accurate and complete chain-of-custody records, properly store the evidence, and prevent contamination, damage to, or destruction of the evidence. The exact protocol will vary depending on the type of evidence, such as rules for preserving biological samples versus digital evidence.
Law enforcement doesn't need to preserve all evidence it collects. The duty to preserve extends only to evidence that might be expected to play a significant role in the suspect's defense—"material" and "exculpatory" evidence.
Material evidence is important evidence that's directly relevant to an issue in the defendant's case, such as evidence that impeaches (discredits) a prosecution witness or otherwise weakens the case. Exculpatory evidence is evidence favorable to the defendant in that it clears or tends to clear him of guilt. Exactly what evidence is material and exculpatory depends upon the circumstances of the case.
Below are examples of common types of evidence that must be preserved.
Biological evidence for DNA testing. Most states require the preservation of biological evidence gathered during a criminal investigation, such as samples of hair, blood, urine, semen, saliva, skin tissue, and fingernail scrapings.
Alibi evidence. Alibi evidence is virtually always material and exculpatory; it includes witness statements that place the defendant somewhere other than the scene of the crime and forensic evidence (like DNA) that tends to show that the defendant couldn't have committed the crime.
Crime scene evidence. Most jurisdictions have local and state rules about the collection and preservation of evidence at the crime scene, such as the murder weapon, clothing, and photographs of the scene.
Tape recordings and videotapes. The police usually aren't required to tape record statements of the defendant or witnesses. However, if they do make audio or video recordings of statements, they must preserve them.
Emergency call recordings. Law enforcement typically must preserve and disclose 911 recordings (or transcripts of the calls) to the defendant.
Investigative notes. Most states require officers and investigators to preserve investigative notes only if they made them during an interrogation of the defendant. (But if those notes contain exculpatory information, that information must be conveyed to the defense.)
While the police typically collect most evidence used in a criminal case, they aren't the only government actors who have to preserve evidence. The duty also extends to:
The duty to preserve evidence doesn't extend to private people or agencies unless they have a formal relationship with a law enforcement agency. Thus, if a private DNA lab is hired by the prosecutor to examine blood samples collected from a crime scene, that lab must protect and preserve the evidence and the results of any testing it conducts on the evidence.
The duty to preserve evidence begins once any state agency or actor has gathered and taken possession of evidence as part of a criminal investigation and generally lasts through the conclusion of the case or the defendant’s sentence.
Jurisdictions have different retention periods for different kinds of evidence, different kinds of cases, or both. The retention period for a misdemeanor case might be only a set number of months or years after the conclusion of the case. However, a state might require the preservation of biological evidence in felony murder or sexual assault cases until a defendant’s death, the defendant's release from all supervision, or indefinitely. (Retention periods for biological evidence tend to be the longest because most states give defendants a right to request post-conviction DNA testing of the evidence.)
Defendants have the burden of proving that the state violated its duty to preserve evidence and that the violation compromised the rights to due process and a fair trial. Courts won't do anything about an alleged violation unless the defendant proves that the evidence in question was material and potentially exculpatory and that the government acted in bad faith. In practice, it's very difficult to prove these points.
In order to prove that the evidence was material, the defendant must establish that:
Courts can sometimes infer materiality from law enforcement's actions. For example, the fact that the state normally preserves the type of evidence that it destroyed in the defendant's case may show that the evidence was material. Similarly, the government testing, using, or intending to test or use the evidence provides a strong indication that it recognized the importance of that evidence.
Proving bad faith is tough. It's not enough that government actors were careless or negligent with the evidence—the defendant must show willful, deceitful, or malicious intent. The government's failure to follow standard procedures when it lost or destroyed evidence may support an inference of bad faith. An example of bad faith is an officer throwing away a fingerprint sample showing that someone other than the defendant committed the crime.
There are several possible remedies for defendants who learn during the trial that the state violated the duty to preserve evidence. They can ask the court to suppress related evidence, exclude or limit testimony about the missing evidence, or dismiss the case. If the missing evidence doesn't surface until after a conviction, overturning the conviction and obtaining a new trial on appeal are possible remedies.
]]>Amnesia refers generally to memory loss that can be caused by a variety of factors, such as physical or mental trauma, medical conditions, or medications. A person's memory, though, isn't the same as the mental state required to commit a crime. The inability to remember committing a crime doesn’t necessarily mean the defendant didn’t intend to and actually commit it.
A defendant’s mental state at the time of the crime is what’s important—amnesia occurring after the crime has no effect on conduct at the time of the offense. Accordingly, amnesia typically isn’t a viable defense. (It might be, however, if, at the time of the alleged offense, it created the conditions for an insanity defense.)
Example: Amnesia caused by chronic alcoholism wasn’t a defense to forgery. Even though the defendant couldn’t recall his actions at the time he forged the signature on the check, his memory loss didn’t affect his intent to commit the fraudulent act. (People v. Hibbler, 274 N.E.2d 101 (Ill. 1971).)
Example: The court upheld the defendant’s homicide conviction because his failure to remember the shooting wasn’t proof of his mental condition at the time of the act. His memory loss wasn’t evidence that he didn’t know right from wrong when the crime occurred. (Lester v. State, 370 S.W.2d 405 (Tenn. 1963).)
Though not typically a defense by itself, a judge can consider amnesia when determining whether someone is competent to stand trial. (For more on the competency standard, see Competency to Stand Trial.)
When considering whether amnesia compromises one’s ability to stand trial, courts look at factors like the following:
Example: The defendant received a fair trial despite his claim of incompetency due to his inability to recall the events of the crime. There was no indication that he didn’t understand the charges, that he wasn’t able to understand the events on the day of the crime, or that he couldn’t assist his attorney in defending against the charges. (Morris v. State, 214 S.W.3d 159 (Tex. App. 2007).)
While a claim of amnesia is rarely determinative of guilt or innocence, the judge or jury can consider it when deciding the penalty for the crime.
Example: Amnesia occurring after the crime wasn’t admissible to prove the defendant’s motives or conduct at the time of the murder. But if the judge or jury believed the defendant actually suffered from it, amnesia could be considered in determining the penalty. (Commonwealth ex. rel. Cummins v. Price, 218 A.2d 758 (Pa. 1966).)
]]>(For more on "beyond a reasonable doubt" and other issues of proof, see Legal Standards of Proof.)
The presumption of innocence requires the prosecution to prove its allegations against the defendant beyond a reasonable doubt as to every criminal element. The elements of the crime generally consist of two parts: the act involved and the mental state or intent required.
The prosecutor bears the burden of producing evidence that the defendant committed the crime. When the prosecution establishes a fact that tends to prove an element of a crime, the burden essentially switches to the accused—not necessarily to disprove the fact—but to raise a doubt about it. The defendant need not raise doubt about every fact that the prosecution tries to prove—creating enough doubt about any point that’s crucial to a guilty verdict will suffice. Of course, the more convincing the fact is, the tougher the defendant’s burden is.
For instance, suppose the prosecution shows that, when searching the defendant, the police found a watch that a jewelry store reported as stolen. In defense of a burglary charge, the defendant would probably have to give a plausible explanation for possessing the watch legally. By producing a receipt or testimony that the watch was a gift, the defendant would essentially shift the burden back to the prosecution.
In virtually every criminal case, the prosecution must also prove that the defendant had a particular intent—either specific or general intent—to commit the crime. In other words, we generally reserve punishment for those who are culpable and act with a guilty mind (as opposed to acts committed by accident).
An example of a specific intent crime is theft. Theft requires that a defendant intended to take an item and not return it. The intent to achieve a certain outcome makes it a “specific intent” crime. With a general intent crime, the prosecution needs to prove only that the defendant committed the act in question, not that he intended any particular outcome from the act. For example, simple assault and battery is a general intent crime, requiring that the defendant intended to hit someone or disregarded a clear risk of hitting someone.
Depending on the particular offense, the prosecution will need to produce evidence of the defendant's intent and the defendant must then poke holes in that evidence.
An accused may claim that certain circumstances constitute a complete defense to actions that would otherwise be criminal. These circumstances are called affirmative defenses. Whether and to what extent the defense must prove an affirmative defense depends on the jurisdiction and the defense.
The most well-known affirmative defense is self-defense. It generally entails the defendant acknowledging that she committed the alleged act, but arguing that it appeared to be necessary in order to defend herself from harm. An example is fighting off a mugger.
Some states may require defendants to prove self-defense by a “preponderance of the evidence,” while others require them to simply raise a plausible basis for it, and the prosecution to disprove it beyond a reasonable doubt. (Preponderance of the evidence is the lowest evidentiary standard; it requires the party to prove that the fact in question is more likely than not to be true.)
Other affirmative defenses include duress, entrapment, insanity, and necessity. Again, whether the defendant carries the burden and what that burden entails depends on the defense and the jurisdiction. For instance, the defendant may have the responsibility of proving insanity by “clear and convincing evidence.” (Clear and convincing evidence is a burden lying somewhere between preponderance of the evidence and beyond a reasonable doubt, requiring that the fact to be proved be highly probable or reasonably certain.)
Each state has its own rules and requirements related to evidence in a criminal proceeding. If you are facing criminal charges, you should consult an attorney who is experienced in the nuances and procedures in your state.
]]>Most states recognize the necessity defense in some form, but even when permitted, it's rarely successful. And, traditionally, the necessity defense isn’t available to a defendant who kills an innocent person, regardless of the circumstances.
A defendant who raises the necessity defense admits to committing what would normally be a criminal act but claims the circumstances justified it.
Normally, to establish a necessity defense—a tall order—a defendant must prove that:
A defendant has the best chance at succeeding with this defense when the criminal act is minor and the potential harm is significant (life-threatening or catastrophic).
A defendant was convicted of driving with a suspended license for traveling to a telephone to call for help for his pregnant wife. He didn’t have his own phone, and his wife was experiencing back and stomach pains. He first walked to his only neighbor’s house to use the phone but found no one home. He then drove a mile and a half to the nearest phone to call his mother-in-law for help. On the drive back home, the police stopped him for a broken taillight and arrested him for driving with a suspended license. Recognizing that circumstances beyond one’s control sometimes force a defendant to engage in illegal conduct, the appellate court ruled that the trial court should have allowed the defendant to present a necessity defense. (State v. Cole, 403 S.E.2d 117 (S.C. 1991).)
]]>The "mens rea" concept is based on a belief that people should be punished only when they have acted in a way that makes them morally blameworthy. In the legal system's eyes, people who intentionally engage in the behavior prohibited by a law are morally blameworthy.
"Ordinary" carelessness is not a crime. For example, careless ("negligent") drivers are not usually criminally prosecuted if they cause an accident, though they may have to pay civil damages to those harmed by their negligence.
However, more-than-ordinary carelessness ("recklessness" or "criminal negligence") can amount to mens rea. In general, carelessness can be a crime when a person "recklessly disregards a substantial and unjustifiable risk." It's up to judges and juries to evaluate a person's conduct according to community standards and decide whether the carelessness is serious enough to demonstrate mens rea. (See What is criminal negligence? and What amounts to recklessness?)
People who unintentionally engage in illegal conduct may be morally innocent; this is known as making a "mistake of fact." Someone who breaks the law because he or she honestly misperceives reality lacks mens rea and should not be charged with or convicted of a crime. For example, if Paul Smith hits Jonas Sack because he reasonably but mistakenly thought Sack was about to hit him, Smith would not have mens rea.
While a "mistake of fact" can negate mens rea, a "mistake of law" usually cannot. Even when people don't realize what they are doing is illegal, if they intentionally commit the act, they are almost always guilty. For example, if Jo sells cocaine believing that it is sugar, Jo has made a mistake of fact and lacks mens rea. However, if Jo sells cocaine in the honest but mistaken belief that it is legal to do so, Jo will have mens rea since she intentionally committed the act. Perhaps the best explanation for the difference is that if a "mistake of law" allowed people to escape punishment, the legal system would encourage people to remain ignorant of legal rules.
Some laws punish only violators who "knowingly" engage in illegal conduct. What a person has to "know" to be guilty of a crime depends on the behavior that a law makes illegal. For example:
In everyday usage people often use the term "malicious" to mean "spiteful" or "wicked." In most criminal statutes, however, "malicious" is synonymous with "intentional" and "knowing." As a result, the term "maliciously" usually adds nothing to the general mens rea requirement.
As used in murder statutes, however, the term "malice" is often interpreted as meaning the defendant had a "man-endangering" state of mind when the act was committed, which is enough to justify at least a second degree murder charge.
As with "maliciously," the term "willfully" usually adds nothing to the general mens rea requirement. At times, however, the term "willfully" in a statute has been interpreted to require the government to prove not only that a person acted intentionally, but also that the person intended to break the law. (This is an unusual instance in which "ignorance of the law" actually is an excuse!) For example, in one case a federal law made it illegal to willfully bring in to the country more than $10,000 in cash without declaring it to customs officials. The U.S. Supreme Court decided that to convict a person of violating this law, the government had to prove that the person knew the law's requirements. (Ratzlaf v. U.S., 510 U.S. 135 (1994).)
"Specific intent" laws require the government to do more than show that a defendant acted "knowingly." Specific intent laws require the government to prove that a defendant had a particular purpose in mind when engaging in illegal conduct. (For more, see General Intent Crimes vs. Specific Intent Crimes.)
For example, many theft laws require the government to prove that a defendant took property "with the intent to permanently deprive a person of the property." To convict a defendant of theft, the government has to prove that a thief's plan was to forever part a victim from his or her property. For example, a culprit who drives off in another's car without permission and returns it a few hours later might be convicted only of "joyriding." However, the same culprit who drives off in another's car without permission and takes it across the country probably demonstrates a specific intent to permanently deprive the owner of the car and would be guilty of the more serious crime of car theft.
"Motive" generally refers to the reason behind an illegal act. For example, a person's need to raise money quickly to pay off a bookie may be the motive for a robbery, while revenge for a personal affront may be the motive for a physical attack. Prosecutors often offer motive evidence as circumstantial evidence that a defendant acted intentionally or knowingly. Judges and jurors are more likely to believe that a defendant had mens rea if they know that the defendant had a motive to commit an illegal act. By the same token, defendants may offer evidence showing that they had no motive to commit a crime and then argue that the lack of a motive demonstrates reasonable doubt of guilt.
Laws that don't require mens rea -- that is, laws that punish people who may be morally innocent -- are called "strict liability" laws. The usual justification for a strict liability law is that the social benefits of stringent enforcement outweigh the harm of punishing a person who may be morally blameless. Examples of strict liability laws include:
Strict liability laws like these punish defendants who make honest mistakes and therefore may be morally innocent.
To learn more about every phase of the criminal justice process, see The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).
]]>For example, a drug possession law might require that the defendant:
So, if the prosecution can establish that Michael had a bag of marijuana in his pocket, but can’t show that he knew that the substance was cannabis rather than caprese salad, the jury must acquit. Or, if the government can show that Wallace had cocaine inside his jacket pocket, but that it was only a trace amount that couldn’t be used, then he isn’t guilty.
For further reading on a related topic see Lesser Included Offenses.
]]>This is a change from the past -- until the 1990s, the only sure-fire way to establish the identity of an individual was to examine his or her fingerprints. Because each individual's fingerprints have a unique pattern, fingerprint evidence is readily admitted into court.
The universally accepted theory underlying DNA analysis is that every person (except an identical twin) has certain elements of his or her DNA (deoxyribonucleic acid, which makes up chromosomes) that are unique.
Different methodologies allow experts to identify these distinguishing elements. The most common of these methodologies is "RFLP," or the "Restriction Fragment Length Polymorphism Technique." By comparing an individual's known DNA with a sample of DNA from a crime scene (for example, in a droplet of blood or a strand of hair), an expert can give an opinion concerning the likelihood that both samples came from the same individual.
This sort of technology is extremely complex; few people are able to understand it. Nevertheless, the major crime labs -- and, increasingly, local police agencies -- are becoming adept at comparing DNA samples left at the scene of a crime with DNA taken from a suspect and concluding on that basis that the suspect is the culprit.
The conclusion that a DNA match proves the defendant's guilt is based primarily on the assumption that the probability against one individual's DNA matching another's is in the hundreds of millions, or even billions, depending on who is crunching the numbers. However, as overwhelming as these figures may seem, it's still possible to whittle them down to far less overwhelming odds if it can be shown that the methods used by the laboratories doing the testing were flawed in some manner. It is this approach, among others, that the defense team in the O.J. Simpson case used to mount its defense against what appeared to be overwhelming DNA evidence implicating O.J. Simpson as the guilty party.
DNA evidence is also proving to be a powerful tool in determining the innocence of prisoners who were tried before DNA testing in its current form was an option. If bodily samples, such as blood or semen, were collected from the crime scene or victim and that evidence is still available for DNA testing, a showing that the prisoner's DNA doesn't match the crime-scene DNA can be a powerful reason to conclude that the prisoner is innocent and should be released. DNA evidence has thus far resulted in the release of about 250 wrongly-convicted prisoners (many of whom had served many years in prison or were even facing the death penalty). Most instances of erroneous convictions are due to mistaken eyewitness identifications.
To learn more about DNA evidence and for answers to other questions about every part of a criminal case, see The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). If you need a criminal defense attorney, check out Nolo's trusted Lawyer Directory for a lawyer in your area.
]]>Many states don’t recognize the doctrine of imperfect self-defense. In those that do, court decisions have developed and refined it.
(For related concepts, see Defense of Others and Self-Defense.)
Unlike “perfect” self-defense, which is available for most violent crimes, imperfect self-defense applies only to murder and attempted-murder charges. It negates only the type of malice required to prove murder; it doesn’t apply to other crimes, even those that have malice as an element. For instance, even though the crime of mayhem often includes a malice element, imperfect self-defense doesn’t apply to it.
In the states that recognize it, imperfect self-defense typically applies where a defendant kills someone pursuant to an actual, but unreasonable belief that:
If there is evidence that the defendant actually believed in the need for self-defense, both imperfect and perfect self-defense could apply. Which defense is successful depends on whether the defendant’s belief was reasonable. It’s for the jury to ultimately determine the reasonableness of the belief.
Example: Oscar, who lives alone, awakens in the middle of the night in his bedroom and hears someone moving around in the next room. He hears footsteps coming toward his bedroom door and gets his gun from the nightstand. As he sees the doorknob begin to turn, he starts firing, killing the person on the other side of the door. Oscar doesn’t qualify for “perfect” self-defense if he didn’t reasonably believe that he faced an imminent threat of death or great bodily injury when he started shooting. Firing through the door without knowing who was on the other side may have been unreasonable. As a backup to self-defense, Oscar could argue imperfect self-defense in order to reduce the murder charge he faces to manslaughter.
Note, however, that the outcome of a case like Oscar’s will depend in part on the law in the state in question. For instance, variations on the “castle doctrine” may provide a complete defense in somewhat similar cases. (See "Stand Your Ground": New Trends in Self-Defense Law and Self-Defense Laws.)
In some states, imperfect self-defense applies only if the defendant would have had a perfect self-defense claim had she not acted on an unreasonable belief about the need for force or the amount of force necessary. In other states, imperfect self-defense may apply in additional circumstances—for example, where the defendant provoked the conflict, didn’t fulfill a duty to retreat, or used excessive force.
Provocation. If the defendant creates a situation where the victim is legally justified in using force—say, by first attacking the victim—then imperfect self-defense usually doesn’t apply. But consider the following example.
Example: A wheelchair-bound defendant invited his cousin to meet him and several others in an alley. When the cousin arrived, the defendant confronted him about a past sexual attack on the defendant’s brother. After the cousin lunged at and started choking him, the defendant pulled out a gun and shot the cousin several times, killing him. Because the cousin’s use of force was unreasonable, the defendant could claim imperfect self-defense, even though he set in motion the chain of events leading to the cousin’s initial attack. (People v. Vasquez, 136 Cal. App.4th 1176 (2006).)
No retreat. Imperfect self-defense may be available if the law requires someone to retreat before using force. In a duty-to-retreat state, a defendant who didn’t retreat, but otherwise reasonably acted in self-defense might have to settle for imperfect—rather than perfect—self-defense.
Victims of Abuse. Imperfect self-defense often becomes an issue in cases where the victim has abused the defendant over time. Depending on the state and the facts, perfect self-defense may even apply. For instance, a history of trauma may be relevant to the reasonableness of the defendant’s belief in the need to defend herself.
Even in those states where imperfect self-defense can be a viable claim, its requirements vary. And there may be limitations to the doctrine not covered in this article. It’s important to seek the advice of an experienced attorney in any criminal case. An attorney in your state will be best able to explain the law and advise you as to how it applies to your case.
]]>Someone premeditates a crime by considering it before committing it. Premeditation requires that the defendant thinks out the act, no matter how quickly—it can be as simple as deciding to pick up a hammer that is lying nearby and to use it as a weapon.
A defendant deliberates by considering the act and its consequences (but not necessarily the punishment) and deciding to follow through with it. A deliberate act isn’t provoked or carried out in the heat of passion. But the fact that a defendant was excited or angry doesn’t rule out deliberation.
Time alone doesn’t determine whether a defendant's crime was premeditated and deliberated. All premeditation and deliberation require is the time it takes to form the intent, ponder the crime, and then act. Defendants can premeditate and deliberate in a matter of minutes, as long as the thought process occurs before the act.
And no specific formula exists for determining whether a defendant premeditated and deliberated before acting. Courts and juries will consider the circumstances of each case.
EXAMPLE: A defendant convicted of first-degree murder for strangling a victim with a lamp cord premeditated the murder. The evidence showed that the defendant repositioned the cord around the victim’s neck numerous times, each time giving him the opportunity to reflect on his actions. The defendant had also had time to consider his actions during a struggle with the victim prior to the strangulation, further proving premeditation. (Berube v. State, 5 So.3d 734 (Fla. 2009).)
]]>Most often, defendants go with the claim that they simply did not commit the alleged act in question. They might argue that someone else committed the crime or that no crime was committed in the first place. A defense attorney taking the position that no offense happened might claim that witnesses' versions of events are untrue or that the client's actions didn't satisfy all the elements of the offense.
Below are a couple concepts within the "didn't do it" line of defense: the presumption of innocence and alibi.
All people accused of crime are legally presumed to be innocent until the point of conviction, whether that comes by way of trial or plea. This presumption means that the prosecution must convince the jury of the defendant's guilt, rather than the defendant having to prove innocence. A defendant may simply remain silent and not present any witnesses, then argue that the prosecution failed to prove its case. But, in practice, defense attorneys often present their own witnesses in order to counteract the government’s case.
The prosecutor must convince the fact-finder of the defendant’s guilt "beyond a reasonable doubt." This heavy burden of proof requires that the jury (in some cases, the judge) have a moral certainty that the defendant is guilty. With such a high burden on the opposition, defense attorneys often impress upon juries that thinking the defendant committed the crime isn’t enough for a conviction.
An alibi defense consists of evidence that the defendant was somewhere other than the scene of the crime at the time of the crime. For example, assume that Jones is accused of committing a burglary on Hampton Street at midnight on September 14. Alibi evidence might consist of a friend’s testimony that he and Jones were at the movie theater from 11:00 p.m. to 1:00 a.m. on the night of the 14th. Additional alibi evidence would be the movie tickets and a credit card statement showing that Jones purchased them shortly before 11:00 p.m.
Sometimes an acquittal is the result even if the prosecutor showed that that the defendant did, without a doubt, commit the alleged act. There are many kinds of "excuse" defenses; read about a few below.
Self-defense is commonly asserted by those charged with crimes of violence, such as battery, assault, or murder. The defendant admits to having used violence, but claims that it was justified by the other person's threatening or violent actions. The core issues in self-defense cases often are:
Self-defense is rooted in the belief that people should be allowed to protect themselves. In part, this means that someone doesn’t necessarily have to wait to the point of actually being struck in order to act in self-defense. Whatever the circumstances are, any force that the would-be defendant uses has to be reasonable under the circumstances.
The insanity defense is generally based on the principle that punishment is justified only where defendants are capable of controlling their behavior and understanding that what they’ve done is wrong. The insanity defense prevents some people who can't function fully from being criminally punished.
The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. (Involuntary intoxication, where applicable, tends to excuse more behavior.) The theory is that defendants know (or should know) how alcohol and drugs affect functioning, and that they shouldn’t be off the hook because they chose to get themselves intoxicated.
Some states have an exception to this general rule: A defendant accused of committing a crime that requires "specific intent" can claim having been too drunk or high to have formed that intent. (Specific intent generally describes a situation where the defendant intends the precise consequences of an act in addition to intending the act itself.) Specific intent may be only a partial defense, however. For example, it might lead to an acquittal for assault with specific intent to kill but a conviction of assault with a deadly weapon, the latter of which typically doesn't require specific intent.
Entrapment occurs when the government induces the commission of a crime that the person wouldn’t have otherwise committed. However, law enforcement officers can provide opportunities for defendants to commit crimes without committing entrapment. Entrapment is often difficult to prove, and, like the defenses above, can be complicated.
If you face criminal charges, consult an experienced criminal defense attorney. A knowledgeable lawyer should be able to fully explain the applicable law—which will depend on your jurisdiction—and protect your rights.
]]>The defense of duress typically has these elements:
(U.S. v. Alzate, 47 F.3d 1103 (11th Cir. 1995); U.S. v. Gonzalez, 407 F.3d 118 (2nd Cir. 2005).)
The immediate threat of death or serious bodily injury may be expressed by words or implied through actions—for instance, pointing a gun in a threatening way. The threat must be continuous and present; a past threat of violence won’t suffice. Usually, neither will a threat of future harm. (U.S. v. Navarro, 608 F.3d 529 (9th Cir. 2010); Frasher v. State, 260 A.2d 656 (Md. Ct. Spec. App. 1970); People v. Petznick, 114 Cal.App.4th 663 (2003); State v. Matson, 921 P.2d 790 (Kan. 1996).)
Although duress is classically framed in terms of a threat to the defendant, most courts say that the defense is available if the threats concern other people, such as the defendant’s spouse or child. (U.S. v. Blanco, 754 F.2d 940 (11th Cir. 1985).)
The requirement that someone acting under duress have a well-grounded fear that the threat will come to pass refers to an objective standard: The fear must be reasonable. In other words, the defendant must establish that a reasonable person would have had a similar fear. For example, if Joe has threatened and assaulted Amy in the past, Amy may be reasonably afraid of Joe’s new threat. Living in an environment of general fear, however, isn’t enough to create duress. (Ruffin v. State, 992 So.2d 1165 (Miss. 2008).)
The duress defense also requires that the defendant have no reasonable avenue for escape. If there’s a legitimate way of avoiding the danger other than committing the criminal act, then the defense of duress isn’t available. (U.S. v. Harris, 104 F.3d 1465 (5th Cir. 1997).)
Example: One evening, Hank drinks six beers at a bar with his friends. He has a disagreement with some men at the bar. He sees the men leave the bar and goes outside after them. The men produce baseball bats and chase him. Hank gets into his truck and drives away. The police stop and arrest him for drunk driving. Hank’s attempt to argue duress will fail because he could have avoided the incident outside of the bar by either staying in it or going back into it once he realized the danger. (State v. Greer, 879 S.W.2d 683 (Mo. Ct. App. 1994).)
Some states provide that the defense of duress is unavailable for certain crimes, like murder. Also, duress typically isn’t an option where the defendant ultimately committed the wrongful act because she placed herself in the dangerous situation to begin with, through negligence, recklessness, or some other kind of fault. For example, if Cathy willingly puts herself in a violent situation where it’s likely that someone will threaten her, then she can’t use the defense. (State v. Gay, 434 S.E.2d 840 (N.C. 1993); U.S. v. Blanco, supra.)
If a defendant wants the judge to instruct the jury about duress, he must show evidence of all the elements of the defense, though the evidence need not be strong. When weighing whether to allow the instruction, the court should generally examine the evidence on its own, rather than compare it to the prosecution’s evidence. Courts have differed on whether the prosecution must disprove the defense of duress beyond a reasonable doubt; the Supreme Court has said that the Constitution doesn’t require states to hold the prosecution to this burden. (U.S. v. Bailey, 444 U.S. 394 (1980); U.S. v. Allen, 798 F.2d 985 (7th Cir. 1986); Dixon v. U.S., 548 U.S. 1 (2006).)
The defense of duress has many ins and outs, and these can vary from state to state, and from state court to federal court. If you face criminal charges, consult an experienced criminal defense attorney. Only such a lawyer can properly advise you of the law in your jurisdiction and explain it as it pertains to your case.
]]>Usually, prosecutors must show that the defendant acted intentionally or knowingly. But, with strict liability crimes, the prosecution doesn’t need to prove that a defendant intended to do something that's illegal. The prosecution doesn’t even need to establish that the defendant was reckless or negligent. It’s enough for a conviction to prove that the act was committed and the defendant committed it.
“Strict liability” is a concept mainly applicable to civil law. It’s a way of holding someone accountable for behavior regardless of fault (such as in product liability cases). Because criminal punishment is usually reserved for those who act with a culpable (guilty) mental state, strict liability crimes are rare. But some acts produce outcomes that lawmakers want to criminally punish regardless of a defendant's state of mind.
Probably the most well-known example of a strict liability crime is statutory rape. Most states make it a crime to have sex with a minor, even if the defendant honestly and reasonably believed that the sexual partner was old enough to give legal consent.
Selling alcohol to a minor is another strict liability crime. In some states, a conviction is appropriate even if the seller honestly thought the buyer was 21 or older and tried to confirm as much.
Some traffic offenses are strict liability crimes. In many places, it doesn’t matter whether a driver knowingly went over the speed limit—the plain act of speeding typically justifies a conviction.
In some instances, there might be a defense to strict liability charges other than “I didn’t do it.” But this is a tricky area of the law. If you face charges for a strict liability offense, contact a knowledgeable criminal defense lawyer to advise you on defenses that might apply in a given case.
]]>The key aspect of entrapment is this: Government agents do not entrap defendants simply by offering them an opportunity to commit a crime. Judges expect people to resist any ordinary temptation to violate the law. An entrapment defense arises when government agents resort to repugnant behavior such as the use of threats, harassment, fraud, or even flattery to induce defendants to commit crimes.
Case Example 1. Mary-Anne Berry is charged with selling illegal drugs to an undercover police officer. Berry testifies that the drugs were for her personal use and that the reason she sold some to the officer is that at a party, the officer falsely said that she wanted some drugs for her mom, who was in a lot of pain. According to Berry, the officer even assured Berry that she wasn't a cop and wasn't setting Berry up. The police officer's actions do not amount to entrapment. Police officers are allowed to tell lies. The officer gave Berry an opportunity to break the law, but the officer did not engage in extreme or overbearing behavior.
Case Example 2. Mary-Anne Berry is charged with selling illegal drugs to an undercover police officer. Berry testifies that, "The drugs were for my personal use. For nearly two weeks, the undercover officer stopped by my apartment and pleaded with me to sell her some of my stash because her mom was extremely sick and needed the drugs for pain relief. I kept refusing. When the officer told me that the drugs would allow her mom to be comfortable for the few days she had left to live, I broke down and sold her some drugs. She immediately arrested me." The undercover agent's repeated entreaties and lies are sufficiently extreme to constitute entrapment and result in a not guilty verdict.
States employ either an objective or a subjective standard to determine whether entrapment occurred.
Case Example. Let's say Jim is charged with serving as a lookout during a liquor store robbery carried out by a street gang. Jim claims that Snitch, a neighborhood friend who turned out to be an undercover police officer, entrapped him by telling him that he had to participate in the robbery or Snitch would be unable to protect him from gang retribution. In a state that employs an objective test for entrapment, a jury decides whether Snitch's actions would have induced a normally law-abiding person to participate in the robbery. In a state that employs a subjective test for entrapment, the prosecutor can offer evidence of Jim's predisposition to commit the crime, including that Jim had a lengthy rap sheet and that he was anxious to join the street gang and wanted to prove his mettle by participating in a violent crime. A jury would then decide whether Jim participated in the robbery out of his own willingness to do so, regardless of Snitch's actions.
Entrapment law is a leash intended to curb outrageous conduct by police officers and other public officials. An entrapment defense does not arise if private individuals convince defendants to commit crimes. For example, in the scenario involving Jim and Snitch, assume that Snitch is a private person and not an undercover government agent. In that case, Snitch's actions could not constitute entrapment under either an objective or a subjective standard.
Entrapment is an affirmative defense. Thus, defendants have the burden of convincing jurors "by a preponderance of the evidence" that government agents' actions rose to the level of entrapment. In a state that employs an objective test of entrapment, a conclusion that entrapment took place results in a not guilty verdict. In a state that employs a subjective test of entrapment, a conclusion that entrapment took place results in the burden of proof shifting back to the prosecution to prove beyond a reasonable doubt that the defendant is guilty because the defendant's predisposition to commit the crime -- not the government agent's actions -- prompted the defendant to commit the crime.
California (objective standard state): Entrapment is a defense if conduct by law enforcement agents that would likely induce a normally law-abiding person to commit a crime induced the defendant to commit a charged crime. The defendant has the burden of proving entrapment by a preponderance of the evidence. Law enforcement agents are allowed to provide opportunity for the commission of a crime, but they cannot induce people to commit crimes by engaging in overbearing conduct such as badgering, coaxing or cajoling, importuning, or other acts likely to induce a normally law-abiding person to commit a crime.
Florida (subjective standard state): Defendants who allege entrapment have the burden of proving by a preponderance of the evidence that a government agent induced the defendant to commit a charged crime. Defendants also have to offer evidence that they were not predisposed to commit the crime. If a defendant offers evidence of lack of predisposition, the burden of proof shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.
For everything you've ever wanted to know about the criminal justice system -- from searches to sentencing -- get The Criminal Law Handbook by Paul Bergman and Sara Berman (Nolo). And if you need more personal help after an arrest or other run-in with the criminal justice system, use Nolo's trusted Lawyer Directory to find an experienced criminal law attorney near you.
]]>In criminal law, descriptions of malice vary somewhat. But, in general, “malice” isn’t as simple as dislike or hate. For example, a common definition provides that a person acts with malice by intentionally committing a wrongful act without a reasonable excuse. A person shows malice in this context by:
(State v. Ryan, 543 N.W.2d 128 (Neb. 1996), overruled on other grounds by State v. Burlison, 583 N.W.2d 31 (Neb. 1998); Branch v. Com., 419 S.E.2d 422 (Va. Ct. App. 1992).)
Example: Henry works at a convenience store in Virginia. He hears a person say that someone is stealing beer. He discovers Sam crouched near a beer refrigerator. Henry pulls out a gun and tells Sam to sit in a chair while he calls the police. He says that if Sam does this, he won’t shoot. As Henry turns around to make the call, Sam fires multiple shots and hits him. A jury convicts Sam of aggravated malicious wounding. Despite Sam’s argument that Henry provoked him, the jury could have reasonably found malice from the evidence that Sam fired multiple shots at Henry’s back. (Branch v. Com., 419 S.E.2d 422 (Va. Ct. App. 1992).)
Malice is often an element in crimes involving death or injury. In such cases, states may use a more specific definition of malice. That definition, which some states use for all crimes, provides that malice is the intent to:
(People v. Kemp, 508 N.W.2d 184 (Mich. Ct. App. 1993).)
Example: Larry and Peter walk near train tracks in Rhode Island. A homeless man shouts at them. Peter pulls out a BB gun that looks like a pistol, aims it at the man, and makes him lie down on the ground. Peter asks Larry to find a rope, and Larry obliges—they use it to hog-tie the man. They beat him and he dies of his injuries. Larry is convicted of second degree murder. The victim’s grave injuries and Larry’s active role in the attack establish that Larry acted with extreme malice. (State v. Lambert, 705 A.2d 957 (R.I. 1997).)
The words a defendant uses or a plan that he or she expresses can directly show malice. Other facts and circumstances, like the deliberate use of a deadly weapon, can also establish this state of mind. (Doss v. Com., 479 S.E.2d 92 (Va. Ct. App. 1996).)
Example: Frank goes to a building with two other men. Jenny, who lives there with her family, opens the door to the building slightly and the men push their way inside. One man points a gun at Jenny, and the men drag her to an upstairs apartment. Without asking for keys, one of the men kicks out the glass in the apartment door; they enter. One of the invaders pulls Jenny into the apartment by her neck. The men rummage through the apartment. At one point, Frank holds a gun to the head of Jenny’s daughter, while one of his colleagues kicks a hole in a locked closet door. The men dump and scatter the contents of a suitcase and Jenny’s purse. A jury convicts Frank of malicious destruction of property. He argues that there wasn’t proof that he acted due to cruelty, hostility, or revenge. However, the smashing of the apartment and closet doors without asking for keys, the scattering of the personal items, and the ferocity of the invasion established malice. (Com. v. Wynn, 677 N.E.2d 710 (Mass. App. Ct. 1997).)
]]>“Corpus delicti” translates to “body of the crime.” The phrase refers to the requirement that there be some kind of evidence—apart from the defendant’s statements—that establishes that someone committed a crime. In some states, the prosecution can’t even present evidence of the defendant’s confession (for example, by playing a recording of it) without this kind of corroboration.
Though the corpus delicti rule sounds like significant protection for criminal defendants, it’s relatively easy to satisfy. In general, any evidence that someone committed the crime in question will be enough—the evidence doesn’t have to show that the defendant was the one to commit it. And in many places, the corroborating evidence needs only to slightly suggest that the crime was committed.
Example: In a state that follows the corpus delicti rule, Bubbles walks into the police station and asks to give a statement. He says that he just robbed someone of money at gunpoint. But Bubbles can’t identify whom he robbed or say where the gun is. Nor does he have any money in his possession. The police have nothing to follow up on—they can’t come up with any evidence apart from Bubbles’s confession indicating that a robbery took place. As a result, Bubbles can’t be convicted of robbery.
Some jurisdictions don’t follow the corpus delicti rule exactly. Instead, their courts tend to focus not on whether corroborating evidence shows that the crime occurred, but on whether the confession was trustworthy or reliable.
Example: In a 1987 federal case, a man named Kerley was convicted of failing to register in the armed forces. Kerley had a duty to register in 1980. Instead of registering, he sent several letters to the Selective Service System announcing his refusal to register and opposition to military action. Kerley argued on appeal that his conviction was due solely to the uncorroborated admissions in his letters. The appeals court upheld the conviction, saying that there was enough independent evidence to establish that his admissions were trustworthy. It pointed to the fact that Kerley “proudly volunteered” what amounted to his confession. The court also noted that the Selective Service had twice searched its files and failed to find any proof that Kerley had registered. (United States v. Kerley, 838 F.2d 932, 940 (7th Cir. 1988).)
]]>Generally, prosecutors can't use evidence of prior convictions to prove a defendant’s guilt or tendency to commit crimes, but they can sometimes use them to question the truthfulness or credibility of the defendant’s testimony.
Courts won’t admit evidence of any old conviction to impeach (discredit) a witness. Rather, the crime must typically be either a felony or any offense (misdemeanor or felony) involving dishonesty, such as fraud. Some states don’t allow judges to admit any information regarding prior convictions unless the defense has first offered evidence to establish the defendant’s credibility.
Prosecutors can usually use evidence of actual convictions only. They can’t ask the defendant-witness about pending charges or arrests that didn’t result in convictions. But they can ask testifying defendants about convictions that are currently pending on appeal or for which sentence hasn't yet been imposed.
When considering whether to allow the prior conviction into evidence, judges must decide if the conviction's value in helping the jury assess the defendant's truthfulness outweighs its potential for prejudice. Evidence of a prior conviction carries with it the substantial possibility that jurors will presume the defendant has a propensity to commit crimes or is a bad person.
Courts typically will consider the following factors with respect to the prior conviction:
Judges usually consider evidence of prior convictions for the same or a similar crime (as the one the defendant now faces) very prejudicial. For this reason, courts in many states won’t admit very similar prior convictions if the prosecution can use a different prior conviction to impeach the defendant.
Courts are more likely to admit evidence of crimes involving dishonesty than crimes of violence or those similar to the offense being tried. Federal courts and some state courts automatically allow evidence of prior crimes involving dishonesty without any prior determination of prejudice. (See Fed. R. Evid. 609 (a) (2).)
Consider the following examples, which show how judges determine whether to admit prior convictions of testifying defendants:
If you face criminal charges, consult an experienced criminal defense lawyer. Only such an attorney can properly advise you about your chances at trial, represent you at trial, and analyze the pros and cons of you testifying (including the chances of a prior conviction coming into evidence).
]]>