"Stand Your Ground": New Trends in Self-Defense Law

Posted by Chris Morales on Mon, Nov 30, 2015 @ 09:30 AM

"Stand your ground" played a part in the prosecution of George Zimmerman in Florida.

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Tags: defendant, trial, court, threat, defense, prosecution

Raising Constitutional Issues in a DUI/Criminal Case

Posted by Chris Morales on Tue, Nov 24, 2015 @ 08:00 AM

Evidence gathered during a DUI traffic stop can sometimes be excluded from trial, if the officers have violated the search and seizure rules that stem from the Fourth Amendment.

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Tags: California, San Francisco, charge, trial, DUI, evidence, search and seizure, traffic stop, defense, police, rights

What Are Extenuating Circumstances?

Posted by Chris Morales on Fri, Nov 20, 2015 @ 09:00 AM

A crime may be charged as a lesser offense, or a sentence may be light, if extenuating circumstances (or mitigating factors) convince the prosecutor or judge to cut the defendant a break.

Two people rob a convenience store at gunpoint. One is a 13-year-old girl, with no criminal record, a runaway with a drug problem, who has fallen under the spell of an older man. The other is her 26-year-old boyfriend. He has a long criminal history, including other armed robberies. The robbery was his idea, and he planned the crime and obtained the weapons. Are these two people equally responsible for their criminal conduct? Do they deserve the same sentence? If not, why not?

Extenuating circumstances are facts that tend to lessen the severity of a crime or its punishment by making the defendant’s conduct understandable or less blameworthy. Extenuating circumstances might include a defendant’s young age, mental illness or addiction, or minor role in the crime. For example, people sometimes break the law while acting in accordance with their religious or cultural beliefs, and this might be considered an extenuating circumstance. A parent who is convicted of child abuse for failing to obtain medical care for a child for religious reasons might be considered less culpable than a person who does the same thing due to neglect, and might raise this issue as a defense to a criminal charge.

How Are Extenuating Circumstances Used?

In law, the concept of extenuating circumstances, sometimes called mitigating circumstances, is broad and the term may mean different things to different jurists. Sometimes, it refers onlyto factors that impact sentencing. Other times, it refers to anything short of a defense that makes the defendant’s criminal behavior less blameworthy and results in a less serious charge or sentence. Sometimes, what is an affirmative defense in some situations or states is an extenuating circumstance is others.

For example, possession of any nude or sexual image of a child under the age of 18 is a crime (child pornography). Sometimes, state laws are written in a way that takes extenuating circumstances into account. In such states, a teen who possesses a nude cell phone picture of another teen might be charged with the less serious crime of teen sexting. Even if the law is not explicit in how to deal with the defendant's age, in many states, if the defendant is also under the age of 18 and the teen depicted willingly sent the image, the crime will be punished less severely than if the defendant were an adult with a collection of computer child pornography.

Decision-makers in the criminal justice system, such as police officers, prosecutors, judges and jurors, are always considering extenuating circumstances along with all the other facts in deciding how best to handle a case. If a person with a developmental disability steals a soda from a store, a police officer might decide not to make an arrest, a prosecutor might decide not to charge the person at all or to charge a person with a less serious crime, the jury might decide not to convict, or a judge might sentence the defendant to a lighter sentence than the maximum.

Aggravating Circumstances

In contrast, aggravating circumstances make a crime more severe or serious. Common aggravating circumstances include the defendant's lengthy prior record or that the crime caused serious injury to a victim.

Capital Cases

Normally, judges, not jurors decide a defendant’s punishment, based not only on the law and the facts, but often on a probation report, which often contains many details about a defendant’s life that are not necessarily part of the criminal case. Death penalty cases are unique because, in most states, jurors decide whether to sentence a defendant to life in prison or death.

In making those decisions, jurors are first required to consider any mitigating (extenuating) circumstances. Mitigating circumstances are not defenses or excuses, but factors that tend to reduce the defendant's blame. State laws vary, but in some states, jurors are required to find the existence of aggravating and mitigating circumstances and then assign weight to these circumstances in fixing the verdict. Examples of mitigating circumstances in capital cases include the defendant's:

  • lack of a prior criminal record
  • extreme mental or emotional disturbance at the time of the crime
  • belief that the crime was justified
  • role as a minor participant in the crime
  • old age or youth (including being a minor), or
  • extreme duress.

In addition, the jury may take into account that the victim was participating in the crime with defendant; and consider any mental illness, disability, or serious intoxication that prevented defendant from understanding or controlling his or her behavior, as well as any other circumstances that lessen the severity of the crime.

Obtaining Legal Assistance

If you were arrested or charged with a crime, but believe that extenuating circumstances are present, you should talk to an attorney about your case. An experienced criminal defense attorney will be able to explain the law, and how to best present your extenuating circumstances so that you achieve the best possible outcome in your case.

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Tags: defendant, Criminal Defense, punishment, judge, criminal record, attorney, defense, crime

How can I find out if the prosecution is hiding helpful evidence?

Posted by Chris Morales on Thu, Oct 22, 2015 @ 01:00 PM

Prosecutors don’t have to actively search for or follow every lead that might lead to information that could help a defendant. But they do have to turn over information that’s favorable to the defense, even if the defense doesn’t ask for it. Defendants are therefore left in the potentially tenuous position of relying on the opposition to help them out, at least to a certain extent. They and their attorneys frequently have the concern (valid or not) that prosecutors have wrongly withheld helpful information. The question is: What, if anything, can they do about it?

The Search for Helpful Information

Though they have an ethical duty to achieve justice, not just to obtain convictions, prosecutors in an excess of zeal may fail to voluntarily reveal favorable information—that is, information that’s either exculpatory or impeaches the prosecution’s case in some way. Defendants should always be alert to the possibility that exculpatory information exists. Defense counsel may learn of it in one of the following ways:

  • by finding a reference to helpful information in a document that the prosecution already turned over, or
  • by actively investigating the case—for example, asking witnesses and police officers who are willing to talk whether they know of any information that might support the defense version of events. Defense attorneys and their investigators may take this tack before, during, and even after trial (in the latter instance, with an eye toward appealing a conviction).

Access to Police and Prosecution Files?

To defendants’ disappointment, neither they nor their attorneys are entitled to rummage through law enforcement documents and objects in search of favorable evidence. However, defense attorneys can file pretrial motions asking a judge to force a prosecutor to give the defense access to police and prosecution files, or at least to review such files and determine whether the defense is entitled to them. Judges won’t allow defense attorneys to go on “fishing expeditions”—rather, the defense must usually show in advance that there's a good chance the information is subject to discovery.

Consult Your Attorney

If you face criminal charges and have an attorney, consult with that lawyer as to how to make sure that the prosecution has turned over all mandated discovery. If you don’t have a lawyer, get one. Only an experienced criminal defense attorney can explain and navigate the ins and outs of the discovery process to make sure you have all the evidence you’re owed.

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Tags: defendant, prosecutors, attorney, criminal, defense, charges, police

Police Conduct and Emotional Distress

Posted by Chris Morales on Mon, Oct 19, 2015 @ 09:00 AM

Whether you can sue for emotional distress caused by law enforcement depends on the circumstances.

Anyone who has had a bad experience with the police—even one not resulting in physical injury—has probably wondered whether there is any remedy. Many want to know whether they can sue. The answer to that question, as with so many legal queries, is, “It depends.” (For information on a related topic, see How much force can officers use during an arrest?)

Generally, citizens can (successfully) sue the police for infliction of emotional distress in one of two instances, when an officer:

  • intentionally or recklessly acts in a way that causes emotional injury or
  • causes emotional distress through a negligent act.

But if the court determines that the conduct was within the scope of the officer’s law-enforcement duties, that officer is generally immune (and can't be held liable).

Intentional Infliction of Emotional Distress

Someone alleging that an officer intentionally caused emotional distress must show that:

  • the officer’s conduct was extreme and outrageous
  • the officer acted intentionally or recklessly, and
  • the conduct caused severe emotional distress.

Extreme and outrageous conduct

Conduct is extreme and outrageous when it goes beyond all possible bounds of decency; it is behavior that society won’t tolerate. Conduct qualifies as extreme and outrageous when it would cause a reasonable person in a similar circumstance to suffer extreme emotional distress; it must be more than annoying, offensive, or humiliating.

Courts decide whether conduct is extreme and outrageous on a case-by-case basis. The court may consider whether:

  • the officer knew that the plaintiff was particularly susceptible to emotional distress
  • there was a pattern of conduct or an isolated incident, or
  • the officer was in a position of power (as officers often are).

In one federal case, for example, a woman offered support to her husband, who was under arrest and being interrogated for themurder of her three-year-old daughter. The detective who heard her offer of support yelled at her that her husband killed the child and that the husband never loved her or her daughter. The officer was in a position of authority and the mother was particularly susceptible to emotional distress at that time. The conduct was sufficiently extreme and outrageous for an intentional-infliction-of-emotional-distress claim. (Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010).)

Intentional or reckless

Extreme and outrageous conduct is actionable if the officer either intended to cause or recklessly disregarded the likelihood that the conduct would cause emotional distress. Conduct that is simply mean, spiteful, or uncaring isn’t sufficient.

For example, in another federal case, an officer was attempting to arrest a suspect for passing checks on a closed account. The officer allowed the suspect’s mother to go into the house and retrieve bank records proving that the account wasn't closed. When she attempted to show the documents to the officer, he told her that she shouldn't interfere in police business and threw her against a car, injuring her neck and back. The court held that the officer’s conduct was outrageous and done with the virtual certainty that emotional distress would result. (Thomas v. Frederick, 766 F.Supp. 540 (W.D. LA. 1991).)

Severe emotional distress

Emotional distress is severe when

  • a reasonable person in the same position as the plaintiff would be unable to cope with or endure it, and
  • the plaintiff’s reaction isn’t unusual.

Intensity and duration are factors courts consider in determining whether distress is severe; it's not severe if it is slight or short-lived.

For example, in yet another federal case, the plaintiff sued for intentional infliction of emotional distress due to being beaten and pepper-sprayed by police. But weight loss, embarrassment, confusion, and one visit to a psychologist didn’t show emotional distress that was sufficiently severe. (Vincent v. Prince George's County, MD, 157 F. Supp. 2d 588 (D. Md. 2001).)

Negligent Infliction of Emotional Distress

Citizens can also sue police officers when the latter cause emotional distress negligently, rather than intentionally or recklessly. The extent of emotional harm required depends on the jurisdiction.

But in order for there to be potential liability for negligently caused emotional distress, the officer must owe a “duty of care” to the citizen. In other words, the court will consider whether the officer had some kind of special relationship with the plaintiff that’s distinct from the general police responsibility to the public at large.

For example, in a Louisiana case, a rape victim sued a sheriff for the emotional distress she suffered when the evidence in her case was mistakenly destroyed before a suspect had been arrested. The court held that the duty to preserve evidence goes to the general public. Law enforcement doesn’t owe any special duty to protect an individual from the misplacement or mistaken destruction of evidence(Dennis v. Wiley, 22 So.3d 189 (La. App. 1 Cir. 2009).)

Physical Injury

Ironically enough, some states require physical injury for emotional distress suits. This injury might be directly caused by the officer’s conduct or a physical manifestation of emotional suffering.

Courts are more likely to require physical harm in negligent infliction of emotional distress cases. But even if it’s not required, physical harm resulting from emotional distress, such as ulcers, headaches, or a miscarriage, will make it easier to prove the case.

In one case, the plaintiff claimed to have been assaulted during an arrest on a college campus. The court rejected the emotional distress claim because there was no evidence of physical symptoms resulting from distress. The only physical injuries suffered were from the assault, not the emotional trauma the plaintiff claimed to have experienced. (Godette v. Stanley, 490 F.Supp.2d 72 (D. Mass. 2007).)

Consult a Lawyer

If you’re wondering whether you have a viable lawsuit against the police, consult an experienced attorney. Only such a lawyer can properly analyze the merits of your claim and the potential defenses for the police and government.

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Tags: Enforcement, officer, plaintiff, defense, police, lawyer

Using a Gun for Self Defense: Laws and Consequences

Posted by Chris Morales on Fri, Aug 28, 2015 @ 08:10 AM
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Tags: self-defense, gun, victim, attorney, defense, crime

Negotiating Before Arraignment and Pleading Guilty at the Arraignment

Posted by Chris Morales on Mon, Jul 20, 2015 @ 10:30 AM

Some criminal defendants are better off negotiating with the district attorney early in their case to minimize the consequences.

Defendants who believe the case against them is very weak often ask whether it's possible to negotiate a dismissal before the arraignment. Unfortunately, this possibility generally exists only for defendants who hire private attorneys prior to arraignment. Defendants who are represented by court-appointed counsel often do not even have counsel appointed until the time of arraignment. And a self-represented defendant should not risk additional legal difficulties by discussing the case with a prosecutor before arraignment (assuming that a prosecutor would agree to meet with the defendant in the first place).

The Private Counsel Advantage

Defendants who hire private counsel before arraignment have a chance to derail the case for several reasons.

A weak case exposed

First, in most parts of the country, intake prosecutors (not the police) are supposed to analyze cases to make sure that there is evidence of guilt and that prosecution is in the interests of justice. Frequently, however, the caseload is so heavy that reviews are cursory, and weak cases sometimes slip into the pipe­line. If an attorney who is well known to the courtroom prosecutor can convince that prosecutor of the weaknesses in the case, the case may get dismissed.

Away from the limelight

Before arraignment, no one in the prosecutor’s office has invested a lot of time or money in the case. With less invested, it's easier to let a weak case go.

A favor to overcrowded court dockets

Especially in urban areas, court­room dockets (schedules) are crowded. By quickly disposing of weak cases, prosecutors can devote the little time they have to more serious cases.  And disposing of iffy cases early on spares the courtroom prosecutor of the embarrasment of showing up in court with weak cases.

For all these reasons, if defense counsel can point out weaknesses that the intake prosecutor did not consider, or convince the prosecutor that further proceedings would not be in the interests of justice, a prearraignment meeting between the defendant’s attorney and the prosecutor may result in the case being derailed before arraignment.

Example: Redd Emption was arrested for carrying a concealed weapon. Rushing to make an airplane, Redd forgot that the gun he was supposed to leave at his house was still in his backpack. He was arrested when the airport metal detector revealed the gun. Redd has no prior arrests. The only reason that he had the gun in the first place is that a series of robberies had taken place in his apartment building, and his father had loaned him the gun for protection. Redd is out on bail and is scheduled for arraignment in a week. Thinking that his arrest is a misunderstanding, Redd is uncertain about whether to hire an attorney. However, a private attorney may be able to get the case dismissed before the arraignment. Redd’s attorney may be able to contact the arraignment prosecutor to seek a mutually agreeable outcome. Redd’s attorney can point out information that the intake prosecutor may not have been aware of—Redd didn’t own the gun; he had borrowed it for protection, and inadvertently had it in his backpack. Though Redd is technically guilty as charged, these factors may convince the prosecutor that trying Redd is not in the interests of justice. As a result, the prosecutor may agree to dismiss the case or offer Redd diversion (that is, agree to temporarily not file the charges and end the case permanently if Redd stays out of trouble for a period of time).


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Tags: defendant, guilty, pleading, arraignment, defense, charges

Incest Laws and Criminal Charges

Posted by Chris Morales on Mon, May 18, 2015 @ 08:50 AM

Learn what constitutes incest and the penalties associated with it.

Incest, which is sexual relations between (non-spouse) family members, is outlawed in most countries, including the United States. Incest laws aim to promote security and unity with the family, and to prevent the genetic problems that often occur in babies whose parents are related.

In the U.S., incest is regulated by state, not federal law, and every state has one or more laws banning this problematic behavior. And while states sometimes vary in defining the outer boundaries of who is considered “family” and the exact behaviors that are off-limits, the underlying goals or policy considerations remain consistent among states.

Recognizing the disruptive nature of incest on healthy family relationships and power dynamics, all state incest laws outlaw sex between close blood relations, and many states also include step-, foster, and adoptive relations, too. And in some states, even unconsummated marriage between close relations is considered incest.

What is “Family?”

For the purposes of incest laws, “family” can mean several things: blood relations, family by adoption or marriage (including step-family members), foster families, and sometimes even “family-like” situations (such as a parent and child who live with the parent’s boy- or girlfriend).

All states include close blood relations— parents, children, aunts, uncles, and grandparents—in the definition of “family.” Closely-related cousins, such as the children of a parent’s sibling, are also included in most states, although more distant cousins are sometimes exempted from incest laws.

In general, the more distant the relation, the less likely that it will be considered as "family" for purposes of incest law. However, other factors (for example, distant cousins being raised in the same household like siblings) can make an otherwise non-problematic relationship incestuous.

Prosecution and Defenses

Often, a situation involving incest also implicates other criminal laws. For example, child abuse and rape (and statutory rape) may be charged as well. Local prosecutors have discretion about whether to bring charges under the state incest law or other applicable laws. Similarly, if a relationship is too attenuated to qualify as an incest crime, the prosecutor will usually have other laws (such as those covering molestation, lewd acts, or rape) under which to prosecute the defendant.

Consent not a defense

A defendant may be convicted of engaging in incest if he knowingly engaged in a sexual encounter with a family member (if no encounter actually took place, the prosecutor may charge the defendant with attempted incest). Because of this, the consent of the other party is not a defense. Of course, as noted, if the victim did not consent and was forced, or was underage, a defendant may face charges for other sex offenses—such as rape and statutory rape—instead of (or in addition to) the incest charge.

For more on rape, see Statutory Rape. And to learn more about statutory rape, see Rape Laws, Defenses, and Penalties.

Who is charged?

Although the ages of the parties are not relevant in proving that incest took place (and are not a defense to such charges), the age of the parties may be relevant as far as who is prosecuted for the crime. For example, if an adult parent has consensual sex with a minor son or daughter, the parent may be prosecuted, while the child will be considered a victim

But where two siblings of similar age are sexually involved with each other, they might both be prosecuted (although many states handle crimes committed by minors through juvenile or family court). For more on crimes committed by minors, see The Juvenile Justice System.

Old cases and the statute of limitations

All states set time periods in which a crime may be prosecuted, such as five or ten years after the incident. Such laws are intended to ensure that cases are handled relatively quickly, and recognize the danger in prosecuting old cases where the facts may be difficult to discern. In some states, if a long time has passed since the time of an incestuous encounter or relationship and a prosecution, the defendant may claim that the statute of limitations has run.

For more information on state statutes of limitation, with state-by-state information, see Criminal Statutes of Limitations.


Penalties for an incest conviction vary according to state law, but may include separation of family members (if a child is involved, the child may be placed in foster or other care), or a jail or prison term of several months to many years.

For information on felony charges and sentences on a state-by-state basis, see Classification of Crimes: Felonies & Misdemeanors.

Help for Incest Survivors

If you or someone you know is a victim of incest or another sex crime, there is free and confidential help available to you. Contact the Rape, Abuse & Incest National Network (RAINN) for online help and local resources.

Talk to a Lawyer

If you are facing an incest charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you, help develop any defenses that might apply to your case, and will know how local prosecutors and judges typically handle cases like yours.

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Tags: Criminal Charges, incest laws, penalties, federal law, defense, prosecution

Conditional Pleas

Posted by Chris Morales on Wed, Apr 22, 2015 @ 09:30 AM

Defendants can sometimes plead guilty, and appeal nevertheless.

Believe it or not, the prosecution and defense occasionally agree (more or less) on the facts underlying criminal charges. Plea bargains regularly arise from these scenarios. But sometimes the parties agree on what happened, agree on the parameters for punishment, yet can’t agree on whether a conviction is appropriate.

“On One Condition”

A conditional plea occurs when the defendant pleads guilty or no contest but reserves the right to have an appeals court decide whether the judge reached the wrong ruling on an issue that’s central to the case. If the appellate court determines that the judge was in fact wrong, the defendant can withdraw the plea.

Conditional pleas are available in federal court and in many states. Typically, though, the prosecution and the judge must agree to them. (The agreement with the prosecution may have to be in writing.) The defendant may be able to enter a conditional plea of “no contest,” or the law might require that the plea be “guilty.”


If the law in the state in question doesn’t allow for conditional pleas or the prosecution or court won’t agree to one, the options are limited. If the defendant insists on reserving an issue for appeal and refuses to enter a plea free of conditions, the judge may have to enter a “not guilty” plea on his or her behalf.

On the other hand, defendants sometimes have a right to appeal certain rulings even if their pleas weren’t conditional. For instance, in a few states, defendants, despite having pleaded guilty, automatically may appeal denials of motions to suppress. (But see Can you lose the right to appeal a ruling by taking a plea deal?) And, regardless of the state, appeals may be possible in other kinds of plea-bargain situations—where, for example, there was ineffective assistance of counsel.

Talk to a Lawyer

To find out whether a conditional plea is available—and a good idea—in your situation, talk to an experienced criminal defense lawyer. An attorney with experience in your area should be able to fully advise you of the law, the procedure, and your options.

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Tags: judge, bargains, trafficking, plead guilty, defense, prosecution

New York mother is guilty of manslaughter in son’s death

Posted by Chris Morales on Wed, Nov 05, 2014 @ 10:18 AM

A jury of seven men and five women in New York Wednesday found pharmaceuticals executive Gigi Jordan, 53,  guilty of first-degree manslaughter for feeding her autistic 8-year-old son a lethal drug.

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Tags: testimony, first-degree, manslaughter, defense