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Lie Detector Test

The word polygraph comes form the Greek for “many writings.” The polygraph machine measures physiological information from the body: breathing, blood pressure, and perspiration. The faster the breathing, the higher the blood pressure, and the greater the amount of sweat, the more likelihood the person being tested is nervous.

Although it had been suggested in the nineteenth and early twentieth centuries that physiological changes could help determine whether a person was telling the truth, the first serious effort to apply this information came in 1920 when John Larson, a police officer in Berkeley, California, developed a device (which he called a polygraph) that could measure breathing and blood pressure. Larson believed that his invention could help determine whether a suspect was telling the truth. When the results of a polygraph test were included as evidence in a criminal case in 1923, they were challenged, and the D.C. District Circuit Court ruled in U.S. v. Frye that polygraph evidence needed to meet three criteria to be accepted:

(1) that the general scientific community must acknowledge the test’s reliability,
(2) that the person conducting the test must be qualified to do so, and
(3) that it can be proven that correct procedures were followed

Known as the “Frye test,” it remained the judicial standard for 70 years.

During that time, scientists worked at refining Larson’s invention. Leonarde Keeler, who had worked with Larson, began developing more sensitive polygraph machines in the 1930s, even starting a polygraph school in 1948.

Through the years, polygraphs were used by law enforcement agencies, but they were not considered definitive. To begin with, the person who is hooked up to the polygraph would already be quite nervous, and to have tubes placed on the chest, a blood pressure cuff on the arm, and metal plates on the fingers would not relax most people. Moreover, there is a difference of opinion on the accuracy of polygraph tests. The American Polygraph Association has stated that inconclusive polygraph results are not the same as incorrect results. Yet typically inconclusive readings are figured in with incorrect ones when establishing a percentage of accuracy.

Polygraphs (“Lie Detectors”)

Polygraph experts continued to fine-tune the machines, and also developed a questioning technique that was intended to produce fewer incorrect readings (the subject is asked to respond “yes” or “no” to questions, and unrelated questions are mixed in with relevant ones; this is meant to eliminate nervous affect).

In 1975, federal judges were given more discretion about the admissibility of evidence under new “Federal Rules of Evidence.” Thus, a judge could allow a jury to consider polygraph results even if they did not pass the Frye Test. In 1993, the U.S. Supreme Court issued an opinion on Daubert v. Merrell Dow Phramaceuticals that definitively replaced the Frye standard. The court said that judges could admit certain scientific evidence as long as the theory behind it could be been tested, it had been subject to peer review and publication, the potential error was known, and the scientific community in general accepted the theory. In the 1998 case of U.S. v. Scheffer, the U.S. Supreme Court ruled that polygraph tests did not have to be admitted as evidence in military trials. (President George H.W. Bush had banned the admission of polygraph evidence from military trials in 1991, citing their unreliability.) But it did not ban polygraph evidence outright. Daubert grants judges the right to determine whether polygraph evidence can be used or ignored, so it is generally up to the judge.

The polygraph has also been used to pre-screen job applicants or to test employees to measure their truthfulness about such issues as drug use or theft. In 1988 Congress passed the Employee Polygraph Protection Act (EPPA), which prohibited business from using polygraph evidence to pre-screen employees or to test current employees, and which prohibited companies from disciplining or firing employees solely for failing a polygraph test. (Polygraphs can be used if an employer can show other evidence against an employee, but the employee still has the right to refuse.) EPPA does not apply to government workers.

Lie Detector Tests: Do They Tell the Truth?

Learn how polygraph tests work, as well as what supporters and detractors have to say about them.

The theory underlying a lie detector test — or a polygraph test, in more scientific terms — is that lying is stressful, and that this stress can be measured and recorded on a polygraph machine. Lie detectors are called polygraphs because the test consists of simultaneously monitoring several of the suspect’s physiological functions — breathing, pulse, and galvanic skin response — and printing out the results on graph paper.

The printout shows exactly when, during the questioning period, the biologic responses occurred. If the period of greatest biologic reaction lines up with the key questions on the graph paper — the questions that would implicate the person as being involved with the crime — stress is presumed. And along with this presumption of stress comes a second presumption: that the stress indicates a lie.

Arguments For and Against

Supporters of lie detector tests claim that the test is reliable because:

• very few people can control all three physiological functions at the same time, and
• polygraph examiners run preexamination tests on the suspect that enable the examiners to measure that individual’s reaction to telling a lie.

On the other hand, critics of polygraph testing argue that:

• many subjects can indeed conceal stress even when they are aware that they are lying, and
• there is no reliable way to distinguish an individual’s stress generated by the test and the stress generated by a particular lie.

The courts in most jurisdictions doubt the reliability of lie detector tests and refuse to admit the results into evidence. Some states do admit the results of polygraph tests at trial if the prosecution and defendant agree prior to the test that its results will be admissible.

Are Lie Detectors Telling the Truth?

You may wonder how, in the absence of a confession, a polygraph operator can confidently determine whether a person is lying. Don’t most people — even innocent ones — get stressed when being asked questions that might land them in big trouble? Yes, but the polygraph operator has techniques to overcome this problem. Before getting to the nitty-gritty of the issue (“Did you do it? Were you There? Do you have any personal knowledge of what happened?”) the operator first asks a series of questions, some of which are emotionally neutral and some of which are calculated to cause emotional discomfort based on the test subject’s personal circumstances. The subject’s physiological responses to these questions are meticulously calibrated. Then, when the operator gets around to the core questions, the responses to those questions can be measured and compared to the responses produced by the neutral and control questions. It’s true, a lot of devils can live in the space of relative anxiety measurements, but numerous independent tests have indicated an accuracy rate in the 80-90% range.

Lie Detector Tests: Do They Tell the Truth?

So if these tests are so accurate, why aren’t they required in every situation where truth is at issue? Why spend billions of dollars on jury trials and independent prosecutors when we could just “wire up” the key witnesses and get at the truth with no fuss and no muss?

Some people are so divorced from morality or a guilty conscience that they may test honest — because they are really good liars or have convinced themselves of a truth that isn’t the truth at all. It may also be possible to throw the results through other methods, such as yogic or biofeedback training, the “nail in the shoe” trick (putting a sharp nail in your shoe to cause yourself pain during the questions to skew the polygraph results), or using a legal or illegal drug to calibrate one’s emotions. Simply put, there is no way to turn a lie detector test into a slam dunk. For this reason, most courts will not admit polygraph results unless both sides to the case agree.

If you have any questions about lie detector test contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Fingerprint Identification

Each fingerprint has a unique set of ridges and points that can be seen and identified by trained experts. If two fingerprints are compared and one has a point not seen on the other, those fingerprints are considered different. If there are only matching points and no differences, the fingerprints can be deemed identical. (There is no set number of points required, but the more points, the stronger the identification. Fingerprints can be visible or latent; latent fingerprints can often be seen with special ultraviolet lights, although on some surfaces a simple flashlight will identify the print. Experts use fingerprint powder or chemicals to set a print; they then “lift” the print using special adhesives.

The pioneer in fingerprint identification was Sir Francis Galton, an anthropologist by training, who was the first to show scientifically how fingerprints could be used to identify individuals. Beginning in the 1880s, Galton (a cousin of Charles Darwin) studied fingerprints to seek out hereditary traits. He determined through his studies not only that no two fingerprints are exactly alike, but also that fingerprints remain constant throughout an individual’s lifetime. Galton published a book on his findings in 1892 in which he listed the three most common fingerprint types: loop, whorl, and arch. These classifications are still used today.

The first murder case in the United States in which fingerprint evidence was used successfully was in Illinois in 1910, when Thomas Jennings was accused of murdering Clarence Hiller after his fingerprints were found at Hiller’s house. Jennings appealed his conviction, but the Supreme Court of Illinois upheld the evidence in 1911 and Jennings was executed in February 1912. People v. Jennings thus established fingerprint evidence as a reliable standard.

The Federal Bureau of Investigation (FBI) established a fingerprint repository through its Identification Division beginning in 1924. This repository held fingerprint cards in a central location. Over the next 50 years the FBI processed more than 200 million fingerprint cards. To eliminate duplicate fingerprints and make it easier to store and share fingerprints among law enforcement agencies, the FBI developed the Automated Fingerprint Identification System (AFIS) in 1991, which computerized the card system. The Integrated AFIS system (IAFIS) was introduced in 1999; a law enforcement official can request a set of criminal prints from IAFIS and get a response within two hours.

Fingerprints are kept for criminals, but civil fingerprints are also kept. People who apply for government jobs, jobs that handle confidential information, banking jobs, teaching jobs, law enforcement jobs, and any job that involves security issues can be fingerprinted. IAFIS stores civil prints as well as criminal prints.

Fingerprint Identification Evidence

A brief explanation of the techniques involved in gathering and using fingerprint evidence.

In this day and age of high-tech crime-solving methods, especially DNA typing, the lowly art of fingerprint identification sometimes seems lost. In fact, fingerprint evidence is highly reliable and particularly accessible to juries: You don’t need a Ph.D. or a scientific lecture on genetics to understand that your own fingers contain a contour map of ridges and whorls that is completely unique. And unlike the theories behind DNA matching, no one seriously doubts this assumption.

Matching Fingerprints

Fingerprint evidence rests on two basic principles:

• A person’s “friction ridge patterns” (the swirled skin on their fingertips) don’t change.
• No two people have the same pattern of friction ridges.

Police officers can use fingerprints to identify defendants and crime victims if a print matches one already on file. (Today, the FBI has a collection of prints that numbers in the millions.) 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.

How Fingerprints Are Found

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 almost impossible 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.

If you have any questions about fingerprint Identification in your criminal case contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Lawyer

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Questioning Eyewitness Testimony

A leading question actually suggests an answer or substitutes the words of the questioning attorney for those of the witness. Many leading questions call for answers of either “yes” or “no.” But not all questions that call for an answer of “yes” or “no” are leading questions.

Judges have discretion to allow leading questions during the direct examination of a witness when the questions have the following traits:

• deal with simple background issues
• will help to elicit the testimony of a witness who, due to age, incapacity, or limited intelligence, is having difficulty communicating her evidence
• are asked of an adverse or hostile witness. Witnesses are considered adverse or hostile when their interests or sympathies may lead them to resist testifying truthfully. In most cases, an adverse party or a witness associated with an adverse party is considered hostile for the purposes of this rule

Questions that call for a narrative answer are more or less the opposite of leading questions. Questions that call for a narrative often produce long speeches that can waste the time of the court and the parties. These kinds of questions are very unpopular with courts and should be avoided.

During cross-examination, attorneys may only ask about subjects that were raised upon the direct examination of the witness, including credibility. If cross-examiners stray into a new topical area, the judge may permit them to do so in the interest of time or efficiency, but harassment of the witness is not permitted under any circumstances.

The “Lay Opinion” Rule

Witnesses must answer questions in the form of statements of what they saw, heard, felt, tasted, or smelled. Usually they are not permitted to express their opinions or draw conclusions. Under the FRE, a court will permit a person who is not testifying as an expert to testify in the form of an opinion if the opinion is both rationally based on his perception and helps to explain the witness’s testimony. Additionally, a competent layperson may provide opinions on certain subjects that are specifically permitted by rule, statute, or case law. Some of these are:

• Another person’s identity
• Another person’s sanity
• Demeanor, mood, or intent
• Identification of handwriting
• Intoxication or sobriety
• Ownership
• The state of health, sickness, or injury
• Speed, distance, and size
• The value of a witness’s own property

Opinion testimony is not necessarily objectionable even if such testimony goes to the ultimate issue to be decided in the trial.

Extrinsic evidence is evidence other than the answers of the witness whose testimony is being impeached. It may be offered to prove facts relevant to impeaching a witness. In addition to extrinsic evidence, a party may attack the credibility of another witness by attempting to show that the witness is or has:

1. Bias, prejudice, interest in the issue, or corruption
2. Criminal convictions, or other prior bad acts
3. Prior inconsistent statements
4. An untruthful character

There are some limits to questioning a witness about a prior criminal conviction. However, according to the FRE, a witness may generally be questioned about criminal convictions when the crime was punishable by a sentence of more than a year or involved fraud or a false statement such as perjury. Before people attempt to use such evidence in a trial, they need to understand the limits to this kind of evidence.

The FRE allows questions about prior bad acts of a witness to impeach that witness’s credibility where, in the court’s discretion, the questions will help get at the truth. Thus, an attorney may ask questions about prior inconsistent statements if the following apply:

• The questioner has a good faith basis for believing that the witness made an inconsistent statement
• The witness needs to be reminded of the time, place, and circumstances of the prior statement
• If the statement is written, a copy of the written statement must be provided to the opposing counsel upon request

Another way to impeach the testimony of a witness is to show that the witness has a character of untruthfulness. This departure from the basic rule states a party may not provide evidence of a witness’s character to show that the witness acted in conformity with that character trait. The FRE permits evidence to prove a witness has a character of untruthfulness in:

• Testimony of specific instances of untruthfulness
• The opinion of another witness concerning the honesty of another witness’s character
• Testimony about the target witness’s reputation for truthfulness in the community

It is important to know that a witness whose testimony is used to impeach the truthfulness of another witness may in turn be impeached.

If you have questions about how criminal attorneys are questioning eyewitness testimony contact us today at 619.405.0063 or visit San Diego Criminal Defense

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Evidence In Criminal Cases

Real Evidence

Real evidence is a thing. Its existence or characteristics are considered relevant and material to an issue in a trial. It is usually a thing that was directly involved in some event in the case, such as a murder weapon, the personal effects of a victim, or an artifact like a cigarette or lighter belonging to a suspect. Real evidence must be relevant, material, and competent before a judge will permit its use in a trial. The process whereby a lawyer establishes these basic prerequisites (and any additional ones that may apply), is called laying a foundation. In most cases, the relevance and materiality of real evidence are obvious. A lawyer establishes the evidence’s competence by showing that it really is what it is supposed to be. Establishing that real or other evidence is what it purports to be is called authentication.

Demonstrative Evidence

Evidence is considered “demonstrative” if it demonstrates or illustrates the testimony of a witness. It is admissible when it fairly and accurately reflects the witness’s testimony and is otherwise unobjectionable. Maps, diagrams of a crime scene, charts and graphs that illustrate profits and losses are examples of demonstrative evidence.

Documentary Evidence

Evidence contained in or on documents can be a form of real evidence. For example, a contract offered to prove the terms it contains is both documentary and real evidence. When a party offers a document into evidence, the party must authenticate it the same way as any other real evidence, either by a witness who can identify the document or by witnesses who can establish a chain of custody for the document.

When people deal with documentary evidence, it is a good idea to consider these four potential pitfalls:

• Parol evidence
• Best evidence
• Authentication
• Hearsay

The parol evidence rule prohibits the admission of certain evidence concerning the terms of a written agreement. Parol evidence is usually considered an issue of substantive law, rather than a pure evidentiary matter.

A party can authenticate documentary evidence in much the same way as it can authenticate other real evidence. Also, some kinds of documents are essentially self-authenticating under the FRE. Some of these are:

• Acknowledged documents to prove the acknowledgment
• Certain commercial paper and related documents
• Certificates of the custodians of business records
• Certified copies of public records
• Newspapers
• Official documents
• Periodicals
• Trade inscriptions

The best evidence rule states that when the contents of a written document are offered in evidence, the court will not accept a copy or other proof of the document’s content in place of the original document unless an adequate explanation is offered for the absence of the original. The FRE permits the use of mechanically reproduced documents unless one of the parties has raised a genuine question about the accuracy of the copy or can somehow show that its use would be unfair. Also under the FRE, summaries or compilations of lengthy documents may be received into evidence as long as the other parties have made the originals available for examination.

Character as Evidence

Character is a general quality usually attributed to a person. Character cannot be used to show that someone acted on a particular occasion in conformity with a particular character trait. On the other hand, habit can be used that way. A habit is a behavior; it is specific, regular, and consistently repeated. Occasionally, some character traits can be linked with a habit, so the distinction between the two can be hard to make at times.

In civil cases, evidence that a person has a character trait generally cannot be used to prove that the person acted in conformity with that character trait on a particular occasion. Evidence of character may be proved where it is an integral issue in a dispute or where a party puts character in issue. Evidence of character is used frequently in criminal trials during the sentencing stage to show that a convicted defendant merits a lesser or greater sentence or other penalty.

“Hearsay” Evidence

The rule against hearsay is deceptively simple and full of exceptions. Hearsay is an out of court statement, made in court, to prove the truth of the matter asserted. In other words, hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated. For example, Witness A in a murder trial claimed on the stand: “Witness B (the “declarant”) told me that the defendant killed the victim.” The definition of hearsay is not too difficult to understand. But the matter can become very confusing when one considers all of the many exceptions to the general rule against hearsay.

Even if a statement meets the requirements for hearsay, the statement may yet be admissible under one of the exceptions to the hearsay rule. The FRE contains nearly thirty of these exceptions. Most of them are generally available, although a few of them are limited to times when the declarant is unavailable.

There are twenty-four exceptions in the federal rules that do not require proof that the person who made the statement is unavailable. These are:

1. Business records, including those of a public agency
2. Certain public records and reports
3. Evidence of a judgment of conviction for certain purposes
4. Evidence of the absence of a business record or entry
5. Excited utterances or spontaneous statements
6. Family records concerning family history
7. Judgments of a court concerning personal history, family history, general history, or boundaries, where those matters were essential to the judgment
8. Learned treatises used to question an expert witness
9. Market reports, commercial publications, and the like
10. Marriage, baptismal, and similar certificates
11. Past recollections recorded
12. Recorded documents purporting to affect interests in land
13. Records of religious organizations concerning personal or family history
14. Records of vital statistics
15. Reputation concerning boundaries or general history
16. Reputation concerning family history
17. Reputation of a person’s character
18. Statements about the declarant’s present sense impressions
19. Statements about the declarant’s then existing mental, emotional, or physical condition
20. Statements in authentic ancient documents (at least 20 years old)
21. Statements in other documents purporting to affect interests in land and relevant to the purpose of the document
22. Statements made by the declarant for the purpose of medical diagnosis or treatment
23. Statements of the absence of a public record or entry
24. The “catchall” rule

“Hearsay” Evidence

The last exception, the so-called “catchall” rule, bears some explanation. This rule does not require that the declarant be unavailable to testify. It does say that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:

• It has sound guarantees of trustworthiness
• It is offered to help prove a material fact
• It is more probative than other equivalent and reasonably obtainable evidence
• Its admission would forward the cause of justice
• The other parties have been notified that it will be offered into evidence

If you have questions about evidence in criminal cases in San Diego contact us today at 619.405.0063 or visit San Diego Criminal Defense

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Criminal Evidence

The outcome of many criminal law cases will depend upon the strength and admissibility of evidence — including physical proof, scientific evidence, and witness testimony. Below you will find information on the different types and uses of evidence in a criminal case.

Evidence and Witnesses

Law of Criminal Evidence: Background

The law of criminal evidence governs how parties, judges, and juries offer and then evaluate the various forms of proof at trial. In some ways, criminal evidence is an extension of civil and criminal procedure. Generally, evidence law establishes a group of limitations that courts enforce against attorneys in an attempt to control the various events that the trial process presents in an adversarial setting. There are many arguments in favor of evidence law; here are five of the most common ones:

1. To ameliorate pervasive mistrust of juries
2. To further legal or social policies relating to a matter being litigated
3. To further substantive policies unrelated to the matter in suit
4. To create conditions to receive the most accurate facts in trials
5. To manage the scope and duration of trials

In the United States, the federal courts must follow the Federal Rules of Evidence (FRE); state courts generally follow their own rules, which are generally imposed by the various state legislatures upon their respective state courts. The FRE is the most influential body of American evidence law. The FRE encompasses the majority of the laws of evidence in 68 brief sections. Its language is accessible, easy to read, and mostly free of technical jargon and complicated cross-referencing. The FRE has been enormously influential in the development of U. S. evidence law. This influence in part is a result of its brevity and simplicity.

Before 1975, U. S. evidence law was mostly a creature of the common law tradition. The FRE was drafted and proposed by a distinguished advisory committee composed of practitioners, judges, and law professors appointed by the United States Supreme Court. Just 20 years after the FRE was adopted in the federal system, almost three-quarters of the states had adopted codes that closely resemble the FRE.

The FRE applies in all federal courts in both criminal and civil cases. Understanding some of the basic provisions of the FRE will enable most people to figure out what is going on at trial, even if there are deviations between the FRE and applicable state laws of evidence.

Criminal Evidence: The Concept of “Admissibility”

Criminal Evidence comes in four basic forms:

1. Demonstrative evidence
2. Documentary evidence
3. Real evidence
4. Testimonial evidence

Some rules of evidence apply to all four types and some rules apply to one or two of them. All of these forms of evidence must be admissible, though, before they can be considered as probative of an issue in a trial.

Basically, if criminal evidence is to be admitted at court, it must be relevant, material, and competent. To be considered relevant, it must have some reasonable tendency to help prove or disprove some fact. It need not make the fact certain, but at least it must tend to increase or decrease the likelihood of some fact. Once admitted as relevant evidence, the finder of fact (judge or jury) will determine the appropriate weight to give a particular piece of evidence. A given piece of evidence is considered material if it is offered to prove a fact that is in dispute in a case. Competent evidence is that evidence that accords with certain traditional notions of reliability. Courts are gradually diminishing the competency rules of evidence by making them issues related to the weight of evidence.

If you have questions about criminal evidence in a San Diego case contact us today for answers at 619.405.0063 or visit San Diego Criminal Defense

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Defenses to Crimes

Here are a handful of defenses to crimes a defendant in San Diego can use to get off the hook.

To convict a criminal defendant in San Diego, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. There are many types of defenses, from “I didn’t do it” to “I did it, but I was too drunk to know what I was doing.”

The Defendant Didn’t Do It! 

Most often defendants try to avoid punishment by claiming they did not commit the act in question.

The Presumption of Innocence

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant’s guilt, but also that the defendant need not say or do anything in his own defense. A defendant may simply remain silent, not present any witnesses, and argue that the prosecutor failed to prove his or her case. If the prosecutor can’t convince the jury that the defendant is guilty, the defendant goes free.

Reasonable Doubt

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty “beyond a reasonable doubt.” This standard is very hard to meet. As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant’s most common defense is often to argue that there is in fact reasonable doubt.

The Alibi Defense

An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie’s alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.

The Defendant Did It, But …

Sometimes a defendant can avoid punishment in San Diego even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.

Self-Defense

Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon, or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person’s threatening actions. The core issues in most self-defense cases are:

• Who was the aggressor?
• Was the defendant’s belief that self-defense was necessary a reasonable one?
• If so, was the force used by the defendant also reasonable?

Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable — if she does, she may be guilty of a crime.

The Insanity Defense

The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them 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:

• Despite popular perceptions to the contrary, defendants rarely enter pleas of “not guilty by reason of insanity.” When they do, judges and jurors rarely uphold it.

• Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the “McNaghten rule,” which defines insanity as “the inability to distinguish right from wrong.” Another common test is known as “irresistible impulse”: a person may know that an act is wrong, but because of mental illness he cannot control his actions (he’s described as acting out of an “irresistible impulse”).

• Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.

• An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.

• Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution. This can be a very painful and humiliating experience, one that many defendants choose to forgo rather than rely on the insanity defense.

Under the Influence

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. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.

Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires “specific intent” (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn’t entirely excuse the defendant’s actions. In this situation, the defendant will usually be convicted of another crime that doesn’t require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn’t require specific intent.

Entrapment

Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.

If you have any questions about defenses to crimes contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063

Monder Law Group - News

Charged With A Crime

After being charged with a crime, the arrest report is sent to a prosecutor, whose job it is to initiate and prosecute criminal cases. Arrest reports summarize the events leading up to arrests and provide numerous other details, such as dates, time, location, and weather conditions of the crime, and witnesses’ names and addresses if that information is available.

The prosecutor will either:

• decide that the case should be charged (as a felony or a misdemeanor), and file a complaint with the trial court.
• decide that the case should be charged as a felony and bring evidence before citizens serving as grand jurors, who will decide what charges, if any, to file, or
• decide that the matter should not be pursued.

Prosecutors can file charges on all crimes for which the police arrested a suspect. Or, they can file charges that are more or less severe than the charges leveled by the police.

If You Are Charged With A Crime

For suspects who are in custody, speedy trial laws typically require prosecutors to file charges, if at all, within 72 hours of arrest. Some jurisdictions require prosecutors to charge a suspect even sooner. For example, California requires that charges be filed within 48 hours. However, prosecutors’ initial charges are subject to change. For example, a prosecutor may not make a final decision on what charges to file until after a preliminary hearing, which may take place more than a month after arrest.

How a Prosecutor Decides Whether If You Are Charged With A Crime

A prosecutor’s decision whether you are charged with a crime may be influenced by factors beyond the specific facts of the incident described in the police report. Some prosecution offices adopt policies on certain types of crimes, often in response to community pressure, and these policies may dictate the prosecutor’s approach in any given case. For example, an office may decide that arrests for driving under the influence of drugs or alcohol will always be taken to trial and not “plea bargained” down to lesser offenses such as reckless driving.

Prosecutors may also be influenced by their own political ambitions. Most prosecutors are elected officials, and many of them view their position as a stepping-stone to higher office. Their decisions on charges are often, therefore, affected by public opinion or important support groups. For example, a prosecutor may file charges on every shoplifting case, no matter how weak, to curry favor with local store owners who want to get the word out that shoplifters will be prosecuted.

Finally, some decisions are influenced by the prosecutor’s sense of what justice requires in the case before him. Prosecutors are supposed to both enforce the law and “do justice.” Doing justice means that occasionally a prosecutor decides not to prosecute a case (or files less severe charges) because the interests of justice require it, even if the facts of the case might support a conviction. For example, if an otherwise law-abiding person makes a one-time, foolish mistake, a prosecutor may decide that it would not serve any purpose to spend time and money prosecuting this person, especially when the chances that the person will re-offend are nil.

The Role of a Grand Jury

If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. Grand juries are similar to regular trial juries (called “petit juries”) in that they are made up of randomly selected individuals. The grand jurors listen to evidence and decide whether charges should be brought against an individual (they decide whether to “indict” someone). However, unlike petit juries, which only sit on one case, grand juries involve a time commitment that typically lasts between 6 and 18 months. The grand jurors may address many cases in the course of their service. In addition, these crucial differences exist:

• Petit jurors decide whether defendants are guilty. Grand juries decide whether there is enough evidence to warrant a trial.
• Grand juries meet in secret proceedings. Petit juries serve during public trials.
• Grand juries have 15-23 people. By contrast, a petit jury usually consists of between 6 and 12 people.
• Petit juries generally have to be unanimous to convict a defendant. Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.

How a Grand Jury Works

When a prosecutor brings a case to a grand jury, he presents the jurors with a “bill” (the charges) and introduces evidence — usually the minimum necessary, in the prosecutor’s opinion — to secure an indictment. The proceedings are secret; it is standard practice to call witnesses to testify against the suspect without the suspect or the suspect’s lawyer present. Indicted suspects can sometimes later obtain transcripts of grand jury proceedings, however — and this is a big reason why prosecutors like to keep the evidence to the minimum.

Although the prosecutor can also call the suspect as a witness, this is not typically done. When suspects are called, they often refuse to testify by invoking their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.

If the grand jury decides to indict, it returns what is called a “true bill.” If not, the grand jury returns a “no-bill.” But even if the grand jury returns a no-bill, the prosecutor may eventually file charges against a suspect. Prosecutors can return to the same grand jury with more evidence, present the same evidence to a second grand jury, or (in jurisdictions that give prosecutors a choice) bypass the grand jury altogether and file a criminal complaint.

If the prosecutor decides to file a complaint rather than present the case to a grand jury, and the case is a felony, the defendant is entitled to a preliminary hearing at which the prosecutor must show that the state has enough evidence of the crime to warrant a trial. However, if the case proceeds by grand jury indictment, no preliminary hearing need be held. For this reason many prosecutors choose the grand jury indictment process because they don’t have to reveal as much evidence before the trial.

If you have any questions about being charged with a crime contact San Diego criminal defense attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Criminal Offense In California

Criminal offenses in California are classified according to their seriousness. For crimes against property, the gravity of a crime is generally commensurate with the value of the property taken or damaged: the greater the property value, the more serious the crime. For crimes against persons, the same proportionality principle applies to bodily injury inflicted upon individuals: the greater the injury, the more serious the crime. However, a host of other factors can influence the seriousness of a criminal offense. These factors include whether the defendant had a prior criminal record; whether the defendant committed the crime with cruelty, malice, intent, or in reckless disregard of another person’s safety; and whether the victim was a member of a protected class (e.g., minors, minorities, senior citizens, the handicapped, etc.). Thus, a less serious crime can be made more serious by the presence of these additional factors, and a more serious crime can be made less serious by their absence.

Three categories of criminal offenses were known at common law, treason, felony, and misdemeanor, with treason being the most serious type of crime and misdemeanor being the least serious. The common law distinction between treason and felony was particularly important in England because a traitor’s lands were forfeited to the Crown. Under a doctrine known as “corruption of the blood,” the traitor also lost the right to inherit property from relatives, while the relatives lost the right to inherit from the traitor. U. S. law has never endorsed corruption of the blood as a criminal penalty, and so treason was dropped as a separate classification of crime in the colonies.

Today every U. S. jurisdiction retains the distinction between felony level criminal offenses and misdemeanor level offenses. However, most jurisdictions have added a third-tier of criminal offense, typically called an infraction or a petty offense. Although the definitions of all three classes differ from one jurisdiction to the next, they do share some common characteristics.

Felonies, Misdemeanors, and Infractions (Criminal Offense In California)

The power to define a crime and classify it as a felony, misdemeanor, or infraction rests solely with the legislature at the federal level (see U. S. v. Hudson, 7 Cranch 32, 11 U.S. 32, 3 L.Ed. 259 [U. S. 1812]). Federal courts do not have the power to punish any act that is not forbidden by federal statute. Most crimes made punishable by federal law are set forth in Title 18 U.S.C. sections 1 et seq.

In the eighteenth century U. S. courts possessed the power to define crimes and establish classifications for criminal offenses. These judicially-created offenses were known as common law crimes. By the early nineteenth century, federal common law crimes were under increasing attack as violating the mandate of the separation of powers established by the U. S. Constitution. Article I of the Constitution gives Congress the power to make law, while Article III gives the judiciary the power to interpret and apply it. Thus, the constitutionally limited role of federal courts precludes them from defining crimes or creating classifications for criminal offenses.

Most states have also abolished common law crimes. In these states the legislature is given the primary and often sole responsibility for defining illegal behavior (the executive branch in a few states plays a limited lawmaking function via executive orders and administrative agency rules and regulations). In the minority of states that still recognize common law crimes, judges generally are not permitted to create new common law crimes from the bench. Instead, all 50 states and the District of Columbia rely on their penal code to shape the nature and scope of their jurisdiction’s criminal laws, and when a penal code designates an offense as a felony, misdemeanor, or infraction, that designation is normally deemed conclusive by the courts.

Felonies

Felonies are deemed the most serious class of offense throughout the United States. Many jurisdictions separate felonies into their own distinct classes so that a repeat offender convicted of committing a felony in a heinous fashion receives a more severe punishment than a first-time offender convicted of committing a felony in a comparatively less hateful, cruel, or injurious fashion. Depending on the circumstances surrounding the crime, felonies are generally punishable by a fine, imprisonment for more than a year, or both. At common law felonies were crimes that typically involved moral turpitude, or offenses that violated the moral standards of the community. Today many crimes classified as felonies are still considered offensive to the moral standards in most American communities. They include terrorism, treason, arson, murder, rape, robbery, burglary, and kidnapping, among others.

In many state penal codes a felony is defined not only by the length of incarceration but also by the place of incarceration. For example, crimes that are punishable by incarceration in a state prison are deemed felonies in a number of states, while crimes that are punishable only by incarceration in a local jail are deemed misdemeanors. For crimes that may be punishable by incarceration in either a local jail or a state prison, the crime will normally be classified according to where the defendant actually serves the sentence.

Misdemeanors

A misdemeanor, a criminal offense that is less serious than a felony and more serious than an infraction, is generally punishable by a fine or incarceration in a local jail, or both. Many jurisdictions separate misdemeanors into three classes: high or gross misdemeanors, ordinary misdemeanors, and petty misdemeanors. Petty misdemeanors usually contemplate a jail sentence of less than six months and a fine of $500 or less. The punishment prescribed for gross misdemeanors is greater than that prescribed for ordinary misdemeanors and less than that prescribed for felonies. Some states even define a gross misdemeanor as “any crime that is not a felony or a misdemeanor.” Legislatures sometimes use such broad definitions to provide prosecutors and judges with flexibility in charging and sentencing for criminal conduct that calls for a punishment combining a fine normally assessed for a misdemeanor and an incarceration period normally given for a felony.

Infractions

An infraction, sometimes called a petty offense, is the violation of an administrative regulation, an ordinance, a municipal code, and, in some jurisdictions, a state or local traffic rule. In many states an infraction is not considered a criminal offense and thus not punishable by incarceration. Instead, such jurisdictions treat infractions as civil offenses. Even in jurisdictions that treat infractions as criminal offenses, incarceration is not usually contemplated as punishment, and when it is, confinement is limited to serving time in a local jail. Like misdemeanors, infractions are often defined in very broad language. For example, one state provides that any offense that is defined “without either designation as a felony or a misdemeanor or specification of the class or penalty is a petty offense.”

Implications of a Criminal Offense In California

The category under which a crime is classified can make a difference in both substantive and procedural criminal law. Substantive criminal law defines the elements of many crimes in reference to whether they were committed in furtherance of a felony. Burglary, for example, requires proof that the defendant broke into another person’s dwelling with the intent to commit a felony. If a defendant convinces a jury that he only had the intent to steal a misdemeanor’s worth of property after breaking into the victim’s home, the jury cannot return a conviction for burglary.

The substantive consequences for being convicted of a felony are also more far reaching than the consequences for other types of crimes. One convicted of a felony is disqualified from holding public office in many jurisdictions. Felons may also lose their right to vote or serve on a jury. In several states attorneys convicted of a felony lose their right to practice law. Misdemeanants with no felony record rarely face such serious consequences.

Criminal procedure sets forth different rules that govern courts, defendants, and law enforcement agents depending on the level of offense charged. The Fourth Amendment to the U. S Constitution allows police officers to make warrantless arrests of suspected felons in public areas so long as the arresting officer possesses probable cause that the suspect committed the crime. Officers may make warrantless arrests of suspected misdemeanants only if the crime is committed in the officer’s presence. Police officers do not have the authority to shoot an alleged misdemeanant while attempting to make an arrest, unless the shots are fired in self-defense. Officers generally have more authority to use deadly force when effectuating the arrest of a felon.

Most criminal courts have limited jurisdiction over the kinds of cases they can hear. A court with jurisdiction over only misdemeanors has no power to try a defendant charged with a felony. Defendants may be charged by information (i.e., a formal written instrument setting forth the criminal accusations against a defendant) when they are accused of a misdemeanor, whereas many jurisdictions require that defendants be charged by a grand jury when they are accused of a felony.

Defendants charged with capital felony offenses (i.e., offenses for which the death penalty might be imposed as a sentence) are entitled to have their cases heard by a jury of twelve persons who must unanimously agree as to the issue of guilt before returning a conviction. Defendants charged with non-capital felonies and misdemeanors may have their cases heard by as few as six jurors who, depending on the jurisdiction and the size of the jury actually impaneled, may return a conviction on a less than unanimous vote. The right to trial by jury is generally not afforded to defendants charged only with infractions or petty offenses. Defendants charged with felonies or misdemeanors that actually result in confinement to a jail or prison are entitled to the advice and representation of a court appointed counsel (see USCA.Const.Amend.6). Defendants charged with infractions or misdemeanors that do not result in incarceration are not entitled to court appointed counsel.

Accused felons must generally be present during their trials, while accused misdemeanants may agree to waive their right to be present. The testimony of defendants and witnesses may be impeached on the ground of a former felony conviction. But a misdemeanor is not considered sufficiently serious to be grounds for impeachment in most jurisdictions. Because of all the additional procedural safeguards afforded to defendants charged with more serious criminal offenses, defendants must usually consent to any prosecution effort to downgrade a criminal offense to a lower level at which fewer safeguards are offered.

What’s the Difference Between a Felony and a Misdemeanor?

Most states break their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.

In some states, certain crimes are described on the books as “wobblers,” which means that the prosecutor may charge the crime as either a misdemeanor (carrying less than a year’s jail time as punishment) or a felony (carrying a year or more).

Behaviors punishable only by fine are usually not considered crimes at all, but infractions — for example, traffic tickets. But a legislature may on occasion punish behavior only by a fine and still provide that it is a misdemeanor — such as possession of less than an ounce of marijuana for personal use in California.

If you have any questions about a criminal offense in California contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney

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Criminal Statutes

Knowing how to read the law will help you determine whether it’s been broken.

All criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor’s “intent”. These requirements are known as the “elements” of the offense. A prosecutor must convince a judge or jury that the person charged with the crime (the defendant) did the acts and had the intent described in the law. For example, commercial burglary is commonly defined as entering a structure (such as a store) belonging to another person, with the intent to commit petty or grand theft (that is, to steal) or any felony.

To convict a person of this offense, the prosecutor would have to prove three elements:

1. The defendant entered the structure.
2. The structure belonged to another person.
3. At the time the defendant entered the structure, he intended to commit petty or grand theft or any felony.

Example: Steve was stopped by a security guard as he left a department store. His oversized backpack contained three pairs of expensive running shoes and nothing else. After interviewing the guard, who described seeing Steve take the shoes and leave without paying for them, the prosecuting attorney decided to charge Steve with burglary.

At the trial, the prosecutor was able to prove the following three elements:

1. Steve entered a structure listed in the burglary statute. (The state statute included the term “store.”)
2. The structure belonged to another person. It was easy to show that Steve did not own the store.
3. Steve entered with the intent to commit theft. The prosecutor convinced the jury that Steve’s use of an oversized, empty backpack was evidence that, at the time he entered the store, he was planning to stash stolen goods. The jury didn’t buy Steve’s claim that he only decided to steal the shoes (and therefore formed the intent to steal) after he had entered the store.

How Defendants’ Mental States Affect Their Responsibility for a Crime

What a defendant intended to do can affect whether a crime has occurred.

What makes a crime a crime? In most cases, an act is a crime because the person committing it intended to do something that the state legislature or Congress has determined is wrong. This mental state is generally referred to as “mens rea,” Latin for “guilty mind.”

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.

Careless Behavior

“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.

Unintentional vs. Intentional Conduct

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.

Crimes Requiring “Knowing” Engagement in Criminal Conduct

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:

• A drug law makes it illegal for a person to “knowingly” import an illegal drug into the United States. To convict a defendant of this crime, the prosecution would have to prove that a defendant knew that what he brought into the United States was an illegal drug.
• Another drug law makes it illegal to furnish drug paraphernalia with “knowledge” that it will be used to cultivate or ingest an illegal drug. To convict a defendant of this crime, the prosecution would have to prove that a defendant who sold or supplied drug paraphernalia knew about the improper purposes to which the paraphernalia would be put.

Crimes Requiring “Malicious” or “Willful” Behavior

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” Crimes

“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 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.

The Role of “Motive” in Criminal Law

“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; 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.

Crimes That Don’t Require Mens Rea

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:

• “Statutory rape” laws, which in some states make it illegal to have sexual intercourse with a minor, even if the defendant honestly and reasonably believed that the sexual partner was old enough to consent legally to sexual intercourse.
• “Sale of alcohol to minors” laws, which in many states punish store clerks who sell alcohol to minors even if the clerks reasonably believe that the minors are old enough to buy liquor.

Strict liability laws like these punish defendants who make honest mistakes and therefore may be morally innocent.

If you have any questions about criminal statutes in San Diego contact us today for answers at 619.405.0063 or visit San Diego Criminal Defense

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Criminal Law In San Diego

The San Diego criminal law “system” encompasses the entire criminal process itself — from investigation and arrest, to conviction and sentencing — and the people who play a role in that process: the accused, police officers, prosecuting attorneys, bail bondsmen, criminal defense attorneys, judges, witnesses, probation officers, and corrections officers.

At all stages of the criminal process, a person suspected of or charged with a crime is entitled to certain fundamental rights that derive from the U.S. Constitution and key court decisions. These include the right to an attorney and the right to a speedy jury trial. These constitutional rights provide a balance between the government’s interest in ensuring that criminal behavior is identified and punished, and the fundamental need to preserve and promote the individual freedoms that characterize a democratic society.

The Outcome: How Might a San Diego Criminal Case End using a San Diego Criminal Defense Lawyer?

The outcome of any criminal case depends upon the crime charged, the strength of the evidence, the legal validity of law enforcement and courtroom procedure, and the goals and strategy of the government and defense. When all is said and done, there may be no legal consequence for a person charged with a crime, because the charges are dismissed, or a full-fledged jury trial might result in a criminal conviction.

Some potential outcomes of a criminal case are:

• A criminal investigation ends with no arrest.
• An arrest occurs, but the case is dismissed because the police illegally seized the only evidence of crime.
• A person is arrested and charged with a crime, then enters into a plea bargain with the government, agreeing to plead “guilty” in exchange for some form of leniency, such as a lighter sentence.
• A person is brought to trial and found “not guilty,” or acquitted, by a jury.
• A person is convicted by a jury and sentenced to a long prison term.

When to use a San Diego Criminal Defense Lawyer?

There are two fundamentally different types of court cases — criminal and civil. Here’s how to tell the difference.

There are two fundamentally different types of court cases — criminal and civil. A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime by Congress or a state legislature. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. Among the important differences between criminal and civil cases are these:

• In a criminal case a prosecutor, not the crime victim, initiates and controls the case. The prosecutor may file criminal charges even if the victim doesn’t approve, or refuse to file criminal charges despite the victim’s desire that criminal charges be filed. This method of beginning the case contrasts with civil cases where the injured party is the one who starts the ball rolling — although if you view the prosecutor as a stand-in for the community injured by a crime, then there’s not much difference.
• A person convicted of a crime may pay a fine or be incarcerated or both. People who are held responsible in civil cases may have to pay money damages or give up property, but do not go to jail or prison. (We don’t have “debtors’ prisons” for those who can’t pay a civil judgment.)
• In criminal cases, government-paid lawyers represent defendants who want but can’t afford an attorney. Parties in civil cases, on the other hand, usually have to represent themselves or pay for their own lawyers. (Juvenile court cases and cases involving civil contempt of court where jail is a possibility, are exceptions to this general rule.)
• In criminal cases, the prosecutor has to prove a defendant’s guilt “beyond a reasonable doubt.” In a civil case, the plaintiff has to show only by a “preponderance of the evidence” (more than 50%) that the defendant is liable for damages.
• Defendants in criminal cases are almost always entitled to a jury trial. A party to a civil action is entitled to a jury trial in some types of cases, but not in others.
• Defendants in civil cases may be jailed for contempt, as happened to Susan McDougal in the Whitewater case.

Sometimes the same conduct may violate both criminal and civil laws. A defendant whose actions violate both criminal and civil rules may be criminally prosecuted by the state and civilly sued by a victim for monetary damages. For instance, in 1995 O. J. Simpson was prosecuted for murder and found not guilty. In an entirely separate case, Simpson was also sued civilly for “wrongful death” by the victims’ families. At the close of the civil case, in 1997, Simpson was found “liable” for (the civil equivalent to guilty meaning “responsible” for) the victims’ deaths and ordered to pay millions of dollars in damages.

If you have any questions about choosing a San Diego Criminal Defense Lawyer contact us today at 619.405.0063 or visit San Diego Criminal Defense