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Criminal Law: Defenses FAQs |
Q: How can a lawyer best save his client from the death penalty?
- A: Most crimes that may carry the death penalty are violent felony crimes such as murder, rape, kidnapping and the like. In these types of crimes, very often the perpetrator will leave his DNA behind, either on the victim or at the crime scene. This is the best way for a defense lawyer to prove actual innocence.
DNA testing can positively exclude someone as the perpetrator of a crime. But because it's so expensive, and people charged with crime are often poor and dependent on court-ordered funding for their defenses, oftentimes it isn't done. If you believe you or someone you know has been wrongfully charged with a crime, make sure you ask your lawyer to seek out any possible DNA evidence for testing, and if necessary, to ask or "pettition" the court to pay for it.
Q: How can I defend myself against charges of having sex with a minor?
- A: The "age of consent" varies by state, but it's usually between the ages of 16 and 18. As general rule, it won't help you to prove you didn't know the youthful age of the victim. And you can't raise the defenses of "mistake" or "lack of knowledge" of the age of the victim as a defense. In most states, engaging in sexual intercourse with a person under the lawful age of consent is illegal regardless of your belief as to the person's age.
Of course, you may have other defenses to the charge. In order to determine what defense you might raise, and your chances of succeeding, you should contact a criminal defense lawyer in your area who's experienced in defending charges of sexual assault against minors.
Q: What does it mean when someone is declared "incompetent to stand trial?"
- A: "Incompetent to stand trial" refers to a defendant's mindset or mental or intellectual capacity at the time of trial. Usually, a trial won't proceed until a judge is satisfied that the defendant is able to understand the charges, help his attorney defend the case, and face his accusers.
Q: What is an alibi?
- A: In order to establish an alibi, an individual must be able to provide proof that she wasn't at the scene of the crime. Often, testimony from other individuals is used to establish where the person was or wasn't. Other records, such as work records or videos that are date- and time- stamped, can help establish the location of an individual at the time the crime was committed.
Q: What is the definition of "entrapment?"
- A: "Entrapment" is a defense that's raised in cases where overzealous law enforcement agents induce or persuade a person to commit a crime. The theory is we shouldn't punish someone who was induced by the government to commit a crime.
A valid entrapment defense has two related components:
- Governmental inducement of the crime and
- Lack of predisposition on the part of the defendant to commit the crime. This means that, absent the government's efforts, the defendant wouldn't have committed the crime
The defendant has the initial burden of proving the government induced him to commit the crime. Then the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.
Entrapment occurs when the criminal design starts with law enforcement officers, who plant the idea to commit the crime in the mind of an innocent person, and then convince him to do the crime so they can prosecute him.
"Predisposition" focuses on whether the defendant was an unwary innocent who, but for the inducement of the officers, wouldn't have committed the crime.
The fact that law enforcement agents provide the opportunity or place for the crime doesn't add up to entrapment. It's only entrapment when the idea for committing the crime is planted in the defendant's mind by law enforcement. For example, there's generally no entrapment where a defendant, while in an area known for illegal drug activities, is arrested after trying to buy illegal drugs from an undercover officer.
On the other hand, there's probably entrapment if the same officer approaches the same defendant in a suburban shopping mall, and the officer asks the defendant if he want to buy or sell drugs.
Q: When is "self defense" a defense?
- A: The defense of "self defense" is what's called an "affirmative defense." The prosecution must disprove self-defense beyond a reasonable doubt.
While the law on self-defense usually varies by state, generally a person is justified in using physical force when it's necessary to defend himself or a third person from what he reasonably believes the use or imminent use of unlawful physical force by the other person.
How much force can you exert in self-defense? Only the amount you reasonably believe is necessary to defend yourself or another person from an unlawful use of force.
Can you ever respond to an attack or threat of an attack by using deadly force? Deadly physical force may be used only if you reasonably believe:
- A lesser degree of force is inadequate to stop the other person, and
- You or another person is in imminent danger of being killed or seriously injured
You aren't justified in using physical force if you provoke the use of unlawful physical force by another person. And you can't justify your use of force if you're the initial aggressor - meaning you started the fight - unless you stop using force first and the other person continues using force.
Some states have "make my day" or "castle" laws that let people use deadly physical force against an intruders they believe have unlawfully entered their home with the intent to commit a crime once inside. These laws assume that citizens have a right to expect absolute safety within their homes.
Q: When should an insanity defense be considered?
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