Boulder Criminal Defense Attorney, Steven Louth 

Can You Get a Conviction off of Your Criminal Record?
Questions and answers concerning getting your record expunged. read >

Police Questioning Prior To Arrest
If you haven't been arrested, but a police officer wants to question you about a crime, what should you do? Here are some tips. read >

How People Get Charged With Crime
Learn how police officers and prosecutors initiate criminal cases. read >

When a Young Person Commits a Crime
A look at what happens in juvenile court. read >

Criminal Law and Procedure: FAQ
The basics of a criminal prosecution, including presumption of innocence, trial by jury, felonies, misdemeanors, conviction and innocence. read >

Common Defenses to Criminal Charges
Here are a handful of ways in which a defendant might get off the hook. read >

Key Aspects of Modern Criminal Procedure: Defendant's Rights
A quick tour of the ways in which the U.S. Constitution attempts to ensure fair treatment for criminal defendants.read >

An Anatomy of a Criminal Trial
Lots of things can happen during a criminal trial. Most trials follow a uniform set of procedures. read >

How Sentencing Works FAQ
These frequently asked questions explain how judges decide what a convicted defendant's punishment will be.read >

Can You Get a Conviction off of Your Criminal Record?

Questions and answers concerning getting your record expunged

You've been arrested, charged, and convicted of a crime. You've done your time and paid your debt to society. Now, you want to move forward with your life, unencumbered by your past mistakes. Yet for ex-criminals, it isn't always that easy. Your criminal record follows you wherever you go, interfering with job opportunities, housing, and even relationships.

When this occurs, it is important to contact an experienced Denver criminal defense attorney to review your legal options. Depending on your conviction, you may be able to have your conviction removed from your criminal record or have your record sealed. There are limitations and the process is not an easy one. As such, it is best to consult with a criminal defense lawyer as soon as possible to begin clearing your record, so you can get your life back on track.

Criminal Record Seal in Colorado
The state of Colorado allows for adults who have been convicted of a misdemeanor or a felony to have their records sealed under certain circumstances. You may have to wait up to 10 years before you can have this done, however. Once your criminal record is sealed, you are legally allowed to tell future employers that no such record exists. Your past mistakes are effectively erased and you slate wiped clean.

One possible way you can petition the court to have your criminal records sealed is if you were part of a dismissed case. This occurs when the charges were dismissed against you, yet still show up on your record when employers do a background check. This alone can prevent you from obtaining employment—even when you were never convicted of a crime.

Drug Conviction and Record Seal
Some drug convictions can also be sealed—even if you were found guilty at trial. This includes most misdemeanors and some felony convictions. Employers and other agencies that may be performing a background check on you do not look favorably on drug convictions on a criminal record. Don't let past drug mistakes lead to future troubles.

Luckily, juvenile records are eligible to be expunged even if they were found guilty of the charge. This allows children the chance to escape their past and move forward into a better future without their criminal record following them.

Unfortunately, not all criminal records are allowed to be sealed or expunged. In addition, if you are required to register as a sex offender, this cannot be undone. An experienced Denver criminal defense lawyer can review your criminal history and determine if you are eligible to have your record sealed.

Copyright 2004 Nolo
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Police Questioning Prior to Arrest

If you haven't been arrested, but a police officer wants to question you about a crime, what should you do? Here are some tips.

Refusing to answer a police officer's questions is not a crime. Of course, people often voluntarily assist the police by supplying information that might help the police make an arrest. But the Fifth Amendment to the U.S. Constitution guarantees the “right of silence.” A police officer generally cannot arrest a person simply for failure to respond to questions. This means that unless a police officer has “probable cause” to make an arrest or a “reasonable suspicion” to conduct a “stop and frisk,” a person approached by the police officer has the legal right to walk away. But the fact that there may be a legal right to walk away doesn't mean this is a wise move. This is because there is no real way to tell what information the officer is using as a basis for his or her actions. In fact, the officer may have information that gives him or her a valid legal basis to make an arrest or to conduct a “stop and frisk,” even if the individual is, in truth, innocent of any wrongdoing. If that is the case, an officer may forcibly detain an innocent individual who starts to leave the scene of an interview.

Common sense and self-protection suggest that people who intend to walk away from a police officer make sure that the officer does not intend to arrest or detain them. A good question might be, “Officer, I'm in a hurry, and I'd prefer not to talk to you right now. You won't try to stop me from leaving, right?” If the officer replies that the person is not free to leave, the person should remain at the scene and leave the question of whether the detention is correct to the courts at a later time.

Even though, as a general rule, a person doesn't have to respond to a police officer's questions, this may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person's activities. If the person fails to comply, the officer can arrest the person for loitering. Therefore, the refusal to answer questions is a problem only if the officer has also observed the person loitering.

Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. Traffic offenses such as speeding and unsafe lane changes are generally classified as “infractions,” for which drivers are given citations in lieu of arrest. However, an officer has the right to demand personal identification — usually a driver's license and the vehicle registration. A driver's refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.

Miranda Warnings and Pre-Arrest Questioning
People are often surprised to learn that if a person hasn't yet been arrested, the police may question the person and use the answers in court without first providing the familiar “Miranda warning” that advises people of their constitutional right to not answer questions and to have an attorney present if they do decide to talk to police officers. In fact, the Miranda warning is required only if the person being questioned is in custody.

Deciding Whether to Answer Pre-Arrest Questions
Whether or not to respond to police questioning generally depends on the person's possible relationship to criminal activity, the person's views of his or her civic responsibilities, and the person's past experiences with the police. If, however, the questioning involves events that may result in criminal charges against the person being questioned, the almost universal advice of defense attorneys is to keep the old mouth tightly shut. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt. The right to not incriminate oneself guaranteed by the Fifth Amendment to the U.S. Constitution is especially powerful in this situation. A person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.

The Right of the Police to Conduct A Stop and Frisk
A police officer may stop a person in order to question them if the officer has a “reasonable suspicion” that the person is engaged in criminal activity. And for self-protection, the officer can at the same time carry out a limited pat-down search for weapons (a “frisk”).

In two cases decided in the 2000 term, the U.S. Supreme Court interpreted the “stop and frisk” rule. In one case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant. In another case the Court ruled that an anonymous tip that a suspect might be armed was insufficient justification for the police to conduct stop and frisk, absent other facts demonstrating the reliability of the tip. (Florida v. J.L, No. 98-1993 (March 28, 2000). )

How a Frisk Becomes a Legal Search — And Possibly an Arrest
When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. The lesson here is that a frisk often leads to a search. And if a search produces an illegal substance, it may result in an arrest.

Copyright 2004 Nolo

How People Get Charged With Crimes

Learn how police officers and prosecutors initiate criminal cases.

To be “charged” with a crime means to be formally accused of that crime. Police officers usually start the charging process with an arrest or citation. They then send copies of their reports to a prosecutor's office staffed by government lawyers whose job it is to initiate and prosecute criminal cases. The prosecutor is supposed to either:

• make an independent decision as to what charges should be filed, OR
• in felony cases, enlist the help of citizens serving as grand jurors in deciding what charges to file.

Prosecutors can look at all the circumstances of a case, including the suspect's past criminal record. They can file charges on all crimes for which the police arrested a suspect, can file charges that are more or less severe than the charges leveled by the police, or can decide to not file any charges at all.

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. (Cal. Penal Code Sec. 825.) However, prosecutors' initial charging decisions are subject to change. For example, a prosecutor's final decision on charges may not be determined until after a preliminary hearing, which may take place more than a month after arrest.

Typically, prosecutors base their initial charging decisions on the documents sent to them by the arresting police officers (usually called police or arrest reports). Arrest reports summarize the events leading up to arrests and provide numerous other details, such as dates, time, location, weather conditions and witnesses' names and addresses if that information is available.

Occasionally a prosecutor will decide that a basically good person made a stupid mistake that shouldn't result in a consequence as severe as a criminal charge. In such a situation, the prosecutor will refuse to prosecute, either in the interests of justice, or because it would be a waste of resources (time and money) to charge such a person with a crime, even where the initial arrest was valid.

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

• Petit jurors decide whether defendants are guilty. Grand juries decide whether to “indict” suspects (charge them with crimes.)
• Grand juries meet in secret proceedings. Petit juries serve during public trials.
• Grand juries have 15-23 people, 16-23 in federal courts. (See Federal Rule of Criminal Procedure 6(a).) 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 the 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 her witnesses being 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. And even if a suspect is called, she will probably invoke her 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 convict the defendant. However, if the case proceeds by grand jury indictment, no preliminary hearing need be held. This means that most prosecutors choose the grand jury indictment process so that they don't have to produce as much evidence before the trial.

Copyright 2004 Nolo

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When a Young Person Commits a Crime

A look at what happens in juvenile court.

“Juvenile justice” is an umbrella term for the special procedures set up by every state to deal with young people whose cases belong in juvenile court. Juvenile courts handle most of the cases in which young people (usually called “juveniles” or “minors”) are accused of committing crimes. Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about “getting tough on crime,” the conflicting opinions on how to deal with minors accused of crimes are greater still.

Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may:

• detain and warn the minor against further violations, and then let the minor go free
• detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
• place the minor in custody and refer the case to a juvenile court.

If the police refer a case to the juvenile court, a prosecutor or a juvenile court “intake” officer (often a probation officer) must then decide whether to:

• dismiss the matter
• handle the matter informally, or
• “petition” the matter by filing formal charges.

In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. After this initial decision is made, procedures vary. What follows is a brief overview of how juvenile cases typically flow through the juvenile justice system:

• A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may initiate proceedings to remove the minor from the custody of his or her parents or guardians.If the intake officer decides to proceed formally, he or she files a petition and the case is placed on the juvenile court's calendar. (In large cities, juvenile courts may handle over 300 cases each day.)
• The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile's personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a “fitness hearing.”At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
• If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an “adjudication”).
• If, after trial, the juvenile court judge “sustains the petition” (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
• Post-disposition hearings may occur. For example, a judge's disposition order may require a minor to appear in court periodically so that the judge can monitor the minor's behavior.

Copyright 2004 Nolo

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Criminal Law and Procedure: FAQ

The basics of a criminal prosecution, including presumption of innocence, trial by jury, felonies, misdemeanors, conviction and innocence.

What's Below:

• Who decides how the criminal justice system works?
• What's the difference between a felony and a misdemeanor?
• How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?
• What is the “presumption of innocence?”
• What does it mean to prove guilt “beyond a reasonable doubt?”
• If I'm accused of a crime, am I guaranteed a trial by a jury?
• Can a jury acquit me even if I broke the law?
• What is self-defense?
• What happens if a defendant is judged “incompetent to stand trial?”
• Can a defendant go free because he was drunk or high on drugs when he committed a crime?

Who decides how the criminal justice system works?

Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections-such as the right to refuse to testify against oneself, the right to confront one's accusers and the right to a trial by jury-for people charged with crimes. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass laws governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.

The interplay between constitutional provisions and legislative enactments is regulated by our courts. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result. For example, a police officer is frisking a suspect on the street and feels a hard object in the suspect's pocket. Suspecting that the object is a possible weapon, the officer reaches into the pocket and finds both a cardboard cigarette box and a packet of heroin. This action by the police officer — reaching into the pocket — would be deemed a permissible search under the rulings of most courts (to protect the officer's safety), and the heroin could be admitted into court as evidence. However, if the object felt by the officer was soft and obviously not a weapon, then reaching into the suspect's pocket might be deemed an illegal search, in which case the heroin couldn't be used as evidence.

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, called “wobblers,” may be considered either a misdemeanor or a felony, because under some conditions the punishment may be imprisonment for less than a year, and in other situations, the criminal may go to prison for 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 fine and still provide that it is a misdemeanor — such as possession of less than an ounce of marijuana for personal use in California.

How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?

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 statute. 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.

You will have to do the same when you read the law. Parse the crime into its required elements to see if each applies in your situation.

What is 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. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt (see below), makes it difficult for the government to put people behind bars.

What does it mean to prove guilt “beyond a 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. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence — just over 50%.) 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 reasonable doubt-that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.

If I'm accused of a crime, am I guaranteed a trial by a jury?

Yes. The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a “hung jury” and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process which allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side-but these decisions may not be based on the juror's personal characteristics, such as race, sex, religion or national origin.

Can a jury acquit me even if I broke the law?

The jury has the ultimate power to decide whether a person is guilty of a crime. As the “conscience of the community,” jurors can free a defendant even if they think the defendant actually committed the crime charged. The name for this power is “jury nullification.” It has always been a part of our judicial system.

When jurors nullify a law by acquitting a defendant who has obviously broken that law, judges and prosecutors can do nothing about it. A jury's not guilty verdict is final. Jury nullification rarely occurs, but when it does, it most often involves cases that have a political component (such as the refusal to convict draft dodgers during the Vietnam War) or that have harsh punishments the jury does not want to impose on that particular defendant.

What is self-defense?

Self-defense is a common defense 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 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.

What happens if a defendant is judged “incompetent to stand trial?”

Aside from insanity as a defense to criminal charges, the question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense. Based on a defendant's unusual behavior, a judge, prosecutor or defense attorney may ask that trial be delayed until the defendant has been examined and her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't understand what's going on, the defendant will probably be placed in a mental institution until her competence is re-established. At that time, the trial will be held.

Can a defendant go free because he was drunk or high on drugs when he committed a crime?

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. People 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 what's known as “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, assault with a deadly weapon instead of assault with the intent to commit murder.

Can a defendant go free because he was drunk or high on drugs when he committed a crime?

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. People 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 what's known as “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, assault with a deadly weapon instead of assault with the intent to commit murder.

Copyright 2004 Nolo

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Common Defenses to Criminal Charges

Here are a handful of ways in which a defendant might get off the hook.

To convict a criminal defendant, 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. A defendant may mount a defense by remaining silent, not presenting any witnesses and arguing that the prosecutor failed to prove his or her case. Frequently, this is the best and strongest way to proceed. But there are many other 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 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. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put people behind bars.

Proving Guilt “Beyond a 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. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence — anything over 50%.) 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 reasonable doubt — that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.

Sometimes, however, a defendant can avoid punishment 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.

Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they cause, regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person genuinely suffers from a mental disorder, and to link mental disorders to the commission of crimes.

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.” And 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 forego rather than rely on the insanity defense.

The Influence of Drugs or Alcohol
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.

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.

Alibi is a perfectly respectable legal defense. Yet to some people the term connotes a phony defense. Defense attorneys usually are careful to remind jurors that alibi is simply a legal term referring to evidence that a defendant was elsewhere at the time a crime was committed, and that it in no way suggests falsity.

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.

Copyright 2004 Nolo

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Key Aspects of Modern Criminal Procedure: Defendant's Rights

A quick tour of the ways in which the U.S. Constitution attempts to ensure fair treatment for criminal defendants.

There are two fundamental aspects of the U.S. criminal justice system — the presumption that the defendant is innocent and the burden on the prosecution to prove guilt beyond a reasonable doubt. But criminal defendants have other rights too. Here we explore some of the other hallmarks of basic criminal procedure.

The Defendant's Right to Remain Silent
The Fifth Amendment to the U.S. Constitution provides that a defendant cannot “be compelled in any criminal case to be a witness against himself.” In short, the defendant has the right to “sit mute.” The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. By contrast, a defendant may be called as a witness in a civil case.

The Defendant's Right to Confront Witnesses
The “confrontation clause” of the Sixth Amendment gives defendants the right to “be confronted by the witnesses against” them. Implicit in this right is the right to cross-examine witnesses — that is, the right to require the witnesses to come to court, “look the defendant in the eye,” and subject themselves to questioning by the defense. The Sixth Amendment prevents secret trials, and except for limited exceptions, forbids prosecutors from proving a defendant's guilt with written statements from absent witnesses.

Special Confrontation Rules for Child Sexual Assault Cases
In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children are afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges — in certain situations — to allow children to testify via closed circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying and can cross-examine the child.

The Defendant's Right to a Public Trial
The Sixth Amendment guarantees public trials in criminal cases. This is an important right, because the presence in courtrooms of a defendant's family and friends, ordinary citizens and the press can help ensure that the government observes other important rights associated with trials.

In a few situations, normally involving children, the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults against children. Also, the judge may exclude witnesses from the courtroom when it appears that they will coach each other.

The Defendant's Right to a Jury Trial
The Sixth Amendment to the U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a “hung jury,” and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process that allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side — but these decisions (called peremptory challenges) may not be based on the juror's personal characteristics such as race, sex, religion or national origin.

The Defendant's Right to be Represented by an Attorney
The Sixth Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.” A judge must appoint an attorney for indigent defendants (defendants who cannot afford to hire attorneys) at government expense only if the defendants might be actually imprisoned for a period of more than six months for the crime. As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility. Otherwise, the judge would be locked into giving an unrepresented defendant a nonjail sentence or a shorter sentence than he or she might think appropriate after hearing the evidence.

A judge normally appoints the attorney for an indigent defendant at the defendant's first court appearance. For most defendants, the first court appearance is either an arraignment or a bail hearing.

Defendant's Right to a Speedy Trial
The Sixth Amendment gives defendants a right to a “speedy trial.” However, it does not specify exact time limits. Thus, judges often have to decide on a case-by-case basis whether a defendant's trial has been so delayed that the case should be thrown out. In making this decision, judges look at the length of the delay, the reason for the delay and whether the delay has prejudiced (harmed) the defendant's position.

Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated.

The Defendant's Right Not to Be Placed in Double Jeopardy
Among the several clauses of the Fifth Amendment to the U.S. Constitution is this well-known provision: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This provision, known as the double jeopardy clause, protects defendants from harassment by preventing them from being put on trial more than once for the same offense. Double jeopardy problems are unusual, because prosecutors usually want to wrap up all their charges at one time in the same case.

One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different jurisdictions. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state.

Furthermore, the double jeopardy clause forbids only more than one criminal prosecution growing out of the same conduct. A defendant can be brought once to criminal court (by the government) and once to civil court (by members of the public) for the same crime. For instance, after O.J. Simpson was acquitted of murdering his ex-wife and her friend, their relatives filed a civil suit against him for actual and punitive damages caused by the killings. The civil suits raised no double jeopardy issues, even though punitive damages are a type of punishment, and Simpson was held civilly liable for the deaths.

Copyright 2004 Nolo

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An Anatomy of a Criminal Trial

Lots of things can happen during a criminal trial. Most trials follow a uniform set of procedures.

The many rituals associated with modern trials have developed over centuries. America's common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. In summary form, assuming that the trial is carried out to completion, those procedures are as follows:

Judge or jury. The defense decides whether it wants the case tried by a judge or a jury (the prosecution can't require a jury trial).

Jury selection. If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called “voir dire.” In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys as well as questions that the judge comes up with on his or her own.

Addressing evidence issues. The defense and prosecution request the court in advance of trial to admit or exclude certain evidence. These requests are called motions “in limine”.

Opening statements. The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. In some cases the defense attorney reserves opening argument until the beginning of the defense case.

Prosecution case-in-chief. The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor.

Cross-examination. The defense may cross-examine the prosecution witnesses.

Redirect. The prosecution may reexamine its witnesses.

Prosecution rests. The prosecution finishes presenting its case.

Defense case-in-chief. The defense presents its main case through direct examination of defense witnesses.

Cross-examination. The prosecutor cross-examines the defense witnesses.

Redirect. The defense reexamines the defense witnesses.

Defense rests. The defense finishes presenting its case.

Prosecution rebuttal. The prosecutor offers evidence to refute the defense case.

Settling on Jury Instructions. The prosecution and defense get together with the judge and craft a final set of instructions tht the judge will give the jury.

Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it, and explaining why the jury should render a guilty verdict.

Defense closing argument. The defense makes its closing argument, summarizing the evidence as the defense sees it, and explaining why the jury should render a not guilty verdict — or at least a guilty verdict on a lesser charge.

Jury instructions. The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges “preinstruct” juries, reciting instructions before closing argument or even at the outset of trial.)

Jury deliberations. The jury (if it is a jury trial) deliberates and tries to reach a verdict. Most states require unanimous agreement, but Oregon and Louisiana allow convictions with only 10 of 12 votes.

Post-trial motions. If the jury produces a guilty verdict, the defense may make post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant.

Sentencing. Assuming a conviction (a verdict of “guilty”), the judge either sentences the defendant on the spot, or sets sentencing for another day.

Copyright 2004 Nolo

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How Sentencing Works FAQ

These frequently asked questions explain how judges decide what a convicted defendant's punishment will be.

What's Below:

• Who determines what punishment a convicted defendant receives?
• Where can the prescribed punishment for crimes be found?
• Do people convicted of the same or similar crimes receive similar sentences?
• What factors do judges use in determining sentences?

Who determines what punishment a convicted defendant receives?

Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant's guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.

Where can the prescribed punishment for crimes be found?

Typically, the law a defendant is charged with violating also identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, “For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both.” Another statute might describe particular behavior as a misdemeanor without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor, or, in some states, for all misdemeanors.

Do people convicted of the same or similar crimes receive similar sentences?

Some state and all federal criminal statutes include “mandatory sentences,” which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a response by state legislatures or Congress to their perception of the public's desire to end judicial leniency and treat alike all people who break the same law.

More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may consider the defendant's past criminal record, age, sophistication, the circumstances under which the crime was committed and whether the defendant genuinely feels remorse. In short, mandatory sentence laws “fit the punishment to the crime”; whereas judges prefer to “fit the punishment to the offender.

What factors do judges use in determining sentences?

If the judge has discretion to determine the sentence, the defense may bring to a judge's attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called “mitigating” factors):

• the offender has little or no history of criminal conduct
• the offender was an accessory (helped the main offender) to the crime but was not the main actor
• the offender committed the crime when under great personal stress, for example, had lost a job, rent was due and had just been in a car wreck, or
• no one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.

Just as mitigating circumstances can sway a judge to lessen a sentence, “aggravating” circumstances can compel a judge to “throw the book at” an offender. A previous record of the same type of offense is the most common aggravating factor. Often, aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.

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Contact Us

If you have been charged with a crime, or if you think that you will be charged, speak with an attorney before you speak with police.Boulder criminal defense attorney Steven Louth can help you understand your rights, and can protect your rights as you face the justice system. Whether you have been charged with a misdemeanor or a felony, Steven can devise a defense strategy to secure a dismissal of charges or an acquittal, or, in the event of a conviction, the most lenient possible penalty. Having worked in the criminal justice system from both sides, Steven has an exhaustive understanding of how the system works, what steps need to be taken in a given case, and how to help his clients protect their future. For more information and a FREE CASE EVALUATION call Boulder criminal defense attorney Steven Louth as soon as possible at (303)442-2297.