1. CHAPTER 11 Criminal Law

2. Developing the Defense Strategy Clients Version of Events: Confession Complete Denial Admit and Explain No version is discoverable by prosecution, however the defense must provide alibi or insanity defense evidence.

3. Limits on Defense Strategies Client can’t tell attorney on version of events and later testify as to another. Attorney may not call witnesses to contradict clients version of events. (Aiding perjury)

4. Developing Defendants Story Approved Techniques: 1. Interviews at the scene 2. Request that defendant write down version of events. 3. Explain the charges against the defendant before listening to their side. Ethical problems can arise here.

5. Miscommunication between attorney and client Attorneys will not normally ask a client their version of events during initial consultation in jail. Attorneys will:  Advise defendant not to speak to police.  Advise defendant as to charges filed and bail procedures

6. Many times attorneys don’t want to hear defendants version of events and will thus focus on the prosecutions case. If client confesses to the crime, their attorney may still put up a defense. Client may lie to attorney regarding their version of events, attorney may still represent them including calling witnesses and so forth.

7. CHAPTER 13 Criminal Law

8. Common Defenses 1. Prosecutions Failure to Prove the Defendant is Guilty Beyond a Reasonable Doubt We will cover Prosecutions burden of proof in Chapter 17 Defendant may chose not to testify and generally prosecution can’t comment on it. Jurors are also told to disregard.(We will cover this further in Chapter 17)

9. Impeachment of Prosecutions Witness: 1. Bias 2. No opportunity to accurately observe  Lighting was poor  Witness was under the influence of drugs or alcohol  Witness was too far away

10. 3. Faulty Police Methods 4.Prosecution Witness cuts a deal 5.Implausible Story Third Party committed the crime is another defense strategy

11. Partial Defenses 1. Conviction of a lesser crime  Asserted in closing arguments  Jury instructions  Judge will only instruct jury regarding lesser crime if there is a possibility that defendant could be guilty of lesser crime.  May be better in certain cases not to offer argument or instruction regarding lesser crime because there may be a likelihood that defendant will be acquitted.

12. Judges may instruct jury regarding lesser crime over the defendants objections.

13. 2. Self Defense Legally justifies an acquittal Used against the following charges: a. battery (striking someone against his or her will) b. assault with a deadly weapon c. assault with intent to commit serious bodily injury d. manslaughter e. first or second degree murder.

14. Factors: Necessary to prevent harm The response was appropriate and necessary. Force that is being used against the victim will be considered.

15. Defendant may hit person first if a reasonable person would believe that physical harm was about to occur. Famous Case: Mendez Brothers in CA Prosecution has burden to show that defendant’s actions were not justified. Defendant may offer evidence that person had a history of violence. In CA, the prosecution may offer violent history of the defendant also.

16. Battered Wife Syndrome Women may show past violence with partner, threats of death and physical or emotional abuse in past. May also offer testimony of psychologist and other experts to explain phenomenon. “Burning Bed” Movie

17. 3. Alibi Defendant offers evidence that he/she was somewhere else when the crime took place. Witnesses may be called to back up the alibi Burden is on prosecution to show that defendant is guilty despite the alibi evidence.

18. Some state courts and the Federal Courts require that the defendant give intends to use the alibi defense and to supply names and phone numbers of alibi witnesses

19. 4. Insanity Defendant was incapable of controlling their moral behavior and could not appreciate the wrongfulness of their behavior at the time the crime was committed.

20. The M’Naghten rule: Defendants are not guilty by reason of insanity if at the time of a crime they were afflicted with a mental disease which caused them not to know what they were physically doing (lack of cognitive capacity), or if they did know, that what they were doing was wrong (lack of moral capacity).

21. States are free to adopt their own tests to determine insanity. “Guilt First” In some states the defendant is tried and found guilty of the crime and then if it is found that the defendant was insane at the time of the commission of crime, they are sent to a mental hospital. If they regain sanity, they are then sent to serve out the rest of their sentence in a penal insitution.

22. A psychiatric expert examines the defendant on behalf of the defense. They will look at the circumstances of the crime, the defendant’s past history. The prosecutor will then request that the defendant be examined by a government psychiatrist. Famous Case: Dan White (Please take a look at the link I posted on the discussion this week concerning this case)

23. Defendants have the burden to show that they were insane at the time of the commission of the crime. Standard can be:  Preponderance of the Evidence  Clear and Convincing Evidence

24. Defendant must notify Prosecutor of intent to use the insanity defense.

25. 5. Intoxication Defendants do not have the constitutional right to offer an intoxication defense. May be used in some states as a partial defense against a charge of a specific intent crime. Involuntary Intoxication may be a valid defense.

26. 6. Entrapment The government cannot induce a defendant to commit a crime and in turn punish the defendant for committing it. If the prosecution shows that a defendant was predisposed to commit the crime anyway, the defendant is guilty even if a government agent suggested the crime and helped the defendant to commit it.

27. Defendant has the burden to show that they were induced to commit a crime and were not predisposed to do so by the preponderance of the evidence.

28. Jury Nullification Juries have the power to hold a defendant not guilty, even if they think they committed it. Juries are not instructed that they have the ability to nullify a law. They must figure it out on their own.

29. Reasons for Jury Nullification: Jurors believe that the law is politically unjust. (Vietnam Protestors) Jurors believe that the law is valid but being applied unjustly. (A Time to Kill movie)