Stand Your Ground Laws

The shooting death of Trayvon Martin brought a lot of attention to so-called “stand your ground” self-defense laws.  That tragic situation caused many people to question the wisdom of stand your ground laws, and still others to demand their repeal.  But what are stand your ground laws?  How do they work, and what purpose do they serve?  This article will answer those questions and more.

Duty to Retreat

It is impossible to discuss stand your ground laws without first explaining the concept of the duty to retreat.  In its most extreme form, the duty to retreat states that a person who is under an imminent threat of personal harm must retreat from the threat as much as possible before responding with force in self-defense.  These days, states that retain the duty generally incorporate a variety of the duty with somewhat less stringent requirements.

Stand Your Ground

Stand your ground laws are essentially a revocation of the duty to retreat.  Stand your ground laws generally state that, under certain circumstances, individuals can use force to defend themselves without first attempting to retreat from the danger.  The purpose behind these laws is to remove any confusion about when individuals can defend themselves and to eliminate prosecutions of people who legitimately used self-defense even though they had not attempted to retreat from the threat.

In many states with stand your ground laws, a claim of self-defense under a stand your ground law offers immunity from prosecution rather than an affirmative defense.  This means that, rather than presenting a self-defense argument at an assault trial, for example, an individual could claim self-defense under the state’s stand your ground law and avoid trial altogether.

States with Stand Your Ground laws differ on whether the law applies to instances involving lethal force, with some states retaining the duty to retreat when lethal force is involved and others removing the duty to retreat under all circumstances.

Controversy over Stand Your Ground

Stand your ground laws are often criticized as encouraging violence.  Critics claim that the laws lead to a “shoot first, ask questions later” attitude that results in more injuries and deaths than would occur without the law.  Proponents of stand your ground counter that the laws allow people to protect themselves without worrying about whether they have retreated sufficiently before using force.

How do the Police Investigate Crimes?

When a crime is committed, the police must determine who committed it so that the criminal can be prosecuted and brought to justice. But how do the police go about investigating these crimes?

Crimes in Progress

As soon as the police receive a call that a crime is in progress, they send officers to the scene of the crime as soon as possible. The officers may be able to catch the criminal right on the scene. The officers will then arrest this person and take her to the police station or the county jail for booking. Before leaving the scene of the crime, the police or their employees will often do a site investigation by taking pictures and taking any objects they think are connected to the crime for evidence. Almost everyone who was at the scene will write a report, including their personal observations, the names and contact information of any potential witnesses, and any items that they took from the scene.

Unsolved Crimes

If a crime was not observed in progress and was particularly serious or complicated, the police may assign the case to a detective. She will then manage a team of investigators to develop a list of suspects and find the actual criminal defendant. The detective may collect forensic evidence, like fingerprints, blood, or saliva found at the scene and send them to labs for analysis. She can also speak to witnesses to try to piece together what happened.

At all times, the police and their employees must obey the Fourth Amendment’s rules for permissible search and seizure. This means that generally, if the police want to search any private property, they must first obtain a warrant which shows that they have probable cause to believe that they will find evidence that will help solve the crime.

Take a look at FindLaw’s sections on Crimes and Criminal Procedure for more information.

The Average Salary of Criminal Lawyers

Criminal lawyers defend and prosecute people who have been charged with crimes by the government. Criminal law is distinct from civil law, in which one party sues another. Most criminal defense lawyers and all criminal prosecutors are government employees and earn a salary. However, some private attorneys provide criminal defense services and generally charge by the hour, day or case.

Prosecutors

Prosecutors are lawyers who argue the case for the state and against criminal defendants. According to a national salary survey conducted by the National Association for Law Placement (NALP), the median entry-level salary for a prosecuting attorney in the United States was $50,000 in 2012. Criminal prosecutors with five years of experience reported a median salary of $61,400, and those with between 11 and 15 years of experience earned a median salary of $76,700 per year.

Public Defenders

Public defenders are criminal defense attorneys who are paid to defend citizens accused of criminal acts who are unable or do not wish to pay a private attorney. Public defenders tend to make slightly more than prosecutors, according to the NALP. As of 2012, starting public defenders reported a median salary of $50,500 per year, while those with five years of experience reported salaries of $62,800 and those with between 11 and 15 years earned a median of $78,600.

Private Defense Lawyers

The income of private defense lawyers largely depends on how many cases they take per year, and what they charge. Private defense lawyers who bill hourly typically charge hundreds of dollars per hour, while those who bill daily typically charge thousands of dollars per day. Others may charge flat rates for certain types of cases, such as misdemeanors. As of 2012, the NALP reports that the median annual income for an entry-level private lawyer was $60,000. However, some private lawyers reported starting incomes of $200,000 or more.

Other Factors Influencing Income

According to the Bureau of Labor Statistics, lawyers employed by the federal government tend to earn the highest salaries of any public attorneys, an average of $129,430 per year. By comparison, state attorneys averaged $81,960 and local government attorneys $93,070 per year. Private attorneys reported an average annual income of $137,170 per year. Location was also found to be a distinct factor in expected income for attorneys; those who practiced in the District of Columbia, higher paying than any states, averaged $161,050 per year. Attorneys in Montana, the lowest-paying state, averaged less than half that — $75,730 per year.

Understanding Criminal Law — How to Break Down a Criminal Statute

When faced with a criminal charge, it always helps to do your own research and reach an understanding of the statute you have been charged under. You should read the statute in the same way the prosecutor reads it. Lawyers are trained to read statutes and determine what the “elements” of the offense are. To do this yourself, you need to take each sentence and break it down into its essential components. For instance, here is a traditional burglary law:

“The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not.”

The key question to ask in order to get an understanding of a criminal law is: “if this didn’t happen, would it matter”? If it matters, then it’s an element; if it’s an irrelevant detail, it’s not.

  1. The first necessary element of this law is that there be a “breaking and entering”. After all, walking into a house by invitation wouldn’t be a burglary.
  2. The second element is that it be a “house of another”. If you broke into your own house, it wouldn’t be a crime.
  3. The third element is that all this take place “in the night time”. Although this is no longer a part of most burglary laws, this was the traditional way of defining a burglary.
  4. The fourth element of the crime is that you’re breaking into another’s house “with the intent to commit a felony therein”. If you broke into a house of another by pure accident (such as mistaking it for your own home) or for some other purpose that didn’t involve committing a felony, you would not be committing a burglary (but you might be committing another crime).
  5. The final element you can view as a modification of the fourth. By saying “whether the felony be actually committed or not”, the law is clarifying that it is really the “intent” to commit a felony that matters, not the actual commission of the felony. After all, we don’t want people getting away with a crime simply because they were incompetent and failed to actually succeed in committing a felony.

 

Understanding criminal law, and how to break down a statute, is crucial to understanding your rights and ensuring that you receive a fair trial.

How Does the Criminal Justice System Work?

The criminal justice system is comprised of three major institutions which process a case from inception, through trial, to punishment. A case begins with law enforcement officials, who investigate a crime and gather evidence to identify and use against the presumed perpetrator. The case continues with the court system, which weighs the evidence to determine if the defendant is guilty beyond a reasonable doubt. If so, the corrections system will use the means at their disposal, namely incarceration and probation, to punish and correct the behavior of the offender.

Throughout each stage of the process, constitutional protections exist to ensure that the rights of the accused and convicted are respected. These protections balance the need of the criminal justice system to investigate and prosecute criminals with the fundamental rights of the accused (who are presumed innocent).

Law Enforcement

Though a number of rights derived from the Constitution protect the accused from abuses and overreaching from law enforcement officers, the arguably most important of these rights are the Miranda advisement and the Fourth Amendment prohibition against unreasonable searches and seizures.

Miranda rights are the familiar refrain of police dramas. “You have the right to remain silent. Anything you say can and will be held against you in the court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” Though we are all familiar with these rights, officers are nevertheless required to remind arrestees of these rights before they are questioned.

The other major restriction on the investigative stage of a case is the prohibition on unreasonable searches and seizures. This prevents officers from searching a suspect or his home without a warrant. There are exceptions for extenuating circumstances, such as when an officer is in “hot pursuit” of a suspect or where evidence might be destroyed, such as when a suspected drug dealer runs into a restroom.

Court System

Much like the law enforcement stage of a case, there are dozens of restrictions on the court’s ability to prosecute a case, including the right to confront one’s accusers, the right against incriminating one’s self, the right to counsel, and the right to a jury trial. The primary purpose of all of these protections is to ensure a fair trial for the accused.

The defendant has a right to be represented by either an attorney of their choosing, or, if they cannot afford one, court-appointed counsel. The jury must be a fair cross-section of the community, which in most cases will not lead to a jury composed of a single race or gender.

Corrections

If the defendant is convicted and the charges merit jail time, they will be sent to the corrections system for punishment. Typically, this involves probation, incarceration, or both. Probation can be either supervised or unsupervised. Supervised probation requires the offender to check in regularly with an officer to ensure compliance with the terms of his probation. Unsupervised probation means that a person only faces jail time or other punishment if they run further afoul of the law.

Incarceration is also a common outcome of criminal trials, especially in more serious cases. The convict is housed in either jail or prison. Jails are usually located in each county and are for less serious offenses. Jail terms usually do not exceed one year. Prison terms are usually for longer than a year and almost always involve serious felony offenses.

The primary constraint on abuses in the correctional system is the right to be free of cruel and unusual punishment. There are many ways in which this prohibition has come into play in our corrections system, including jail overcrowding, improper medical care, and in physical abuses at the hands of corrections officers. Though violations do occur, they usually will not result in a suspension of one’s sentence. Rather, the remedy is typically injunctive relief and/or monetary damages obtained via a civil rights lawsuit.

Hire a Criminal Defense Lawyer

If you’ve been arrested or charged with a crime, you need the immediate assistance of a criminal defense lawyer. A good criminal defense lawyer can explain your rights in all stages of the criminal process and help make the difference between a reduced plea bargain or dismissal and a jail sentence.

Below is important information you need to know about hiring a criminal defense lawyer.

Why You Need a Criminal Defense Lawyer

Being charged with a crime — whether major or minor — is a serious matter. A person facing criminal charges risks severe penalties and consequences, such as jail time, having a criminal record, and loss of relationships and future job prospects, among other things. While some legal matters can be handled alone, a criminal arrest of any nature warrants the legal advice of a qualified criminal defense attorney who can protect your rights and secure the best possible outcome for your case.

If you’re facing criminal prosecution, a criminal defense attorney can help you understand (1) the nature of the charges filed; (2) any available defenses; (3) what plea bargains are likely to be offered; and (4) what is expected after trial or conviction.

What to Look for in a Criminal Defense Lawyer

Criminal defense attorneys handle a variety of criminal cases, including felonies, misdemeanors, drug charges, white collar crimes, and many other state and federal crimes. When looking for a criminal defense lawyer, you’ll want to find the best one for your case. As such, you should concentrate on the lawyer’s expertise, skill level, and knowledge.

A good criminal defense lawyer may help (1) reduce your criminal charge to a lesser offense (for example, reduce a felony to a misdemeanor); (2) lessen the severity of the punishment for the crime; and (3) reduce or eliminate jail time (via probation, for example); and (4) help you develop a sound defense strategy.

Also, because of the nature of what’s at stake, it’s important that the attorney you hire has the necessary skill level needed to defend the case, and is the one who actually conducts most of the work. For instance, you may need someone familiar with crime scene investigations, witness/victim/police interviewing, and/or extensive knowledge of polygraphs, sketches, photographs, and video.

Finally, because criminal laws and penalties vary by state, it’s important that the attorney have experience with the state and local rules of court.

How to Find a Criminal Defense Lawyer

There are numerous ways to find a criminal defense lawyer. Referrals from friends and family or online research may be a good start. However, in many instances, a person facing criminal charges may not wish to publicize the news of his or her arrest to extended family members and friends or may not have unlimited time to research online. As such, you may wish to find a local criminal defense lawyer using one of several quality-assured lawyer directories, such as FindLaw, devoted to connecting you to an experienced criminal defense lawyer in your area.

Questions to Ask a Criminal Defense Lawyer

Before selecting a criminal defense lawyer, you should feel comfortable enough speaking with him or her concerning all aspects of your criminal charge. Below are some of the questions you should ask:

Do you have any experience handling cases similar to mine?

How much of my criminal case will you actually handle?

How many jury trials have you litigated?

How often do you work out plea agreements or ask for a lesser charge?

What are your attorney’s fees, and how are they calculated? Do you offer a payment plan?

Would you be willing to provide references from clients you’ve helped?

Criminal Defense Lawyer Fees

The cost of hiring a criminal defense lawyer will vary depending on a number of factors, including the attorney’s experience, reputation, track record, and geographical location. Most criminal defense attorneys bill their time either hourly, or by a flat fee arrangement. Depending on the fee arrangement, some attorneys may allow you to get on a payment plan to handle ongoing charges. Others may require an upfront retainer fee before working on the case. In all cases, it is wise to consult with a variety of criminal defense lawyers in your area to find one you feel comfortable with in representing you and get a sense of the cost involved in representing your case.

Lastly, if you cannot afford to hire an attorney, you may be able to receive a state or government-appointed attorney to representation you in your case. If this applies to you, speak to a public defender in your area for more information.

Defending Yourself Against a Criminal Charge

Every case is different, but here are a few of the most common defenses to a criminal charge

In order to convict you of a criminal charge, the prosecutor must prove your guilt beyond a reasonable doubt. This is a pretty lofty standard, and during any trial the defendant may present a defense in order to raise such a reasonable doubt. Most defenses break down into one of two categories: (1) I didn’t do it or (2) I did it, but I shouldn’t be held responsible.

1. I Didn’t Do It

The most basic defense to any criminal charge is to simply prove that you didn’t do it.

Innocent Until Proven Guilty

One of the hallmarks of the American legal system is the presumption that you are innocent until proven guilty. This isn’t just an ideal, it’s an actual legal presumption, which means the judge and jury must assume you’re innocent until they are shown otherwise. This is why a defendant can “plead the fifth”, remain silent, and not offer a shred of evidence to support his or her claim of innocence and still prevail. It is the prosecutor’s job to prove a defendant is guilty, not a defendant’s job to prove that he or she is innocent. So what does a prosecutor have to show?

Beyond a Reasonable Doubt

The prosecutor must demonstrate to the judge or jury that there is no reasonable doubt of your guilt. If any reasonable doubt can be shown, any at all, then the prosecutor has failed and you should be found innocent. Because this standard is so high, most defendants concentrate on raising some reasonable doubt to the prosecutor’s allegations.

I Have an Alibi

One of the primary ways defendants prove that they didn’t do it is to demonstrate that they couldn’t have done it. An alibi defense is evidence that you were somewhere else, often with someone else, and thus couldn’t have been the perpetrator. By demonstrating to a judge or jury that it is likely that you weren’t present at the crime scene, you are creating a reasonable doubt of your guilt.

2. I Did It, but Shouldn’t Be Held Responsible

Many defendants admit that they did the act, but claim for one reason or another, that they shouldn’t be held responsible. Here are a few examples of this type of defense:

Self-Defense

This is a common defense when someone is charged with causing some form of physical violence (assault, battery, etc). The defendant flips the story, and demonstrates that rather than being the aggressor, he or she was actually the victim and was acting to protect themselves from harm.

Self-defense is an ancient defense that exists in most legal systems, and is predicated on the belief that people have a right to defend themselves from physical injury. Proving such a defense can be tricky since a defendant will generally have to demonstrate that self-defense was necessary, the belief of physical harm was reasonable, and that the response was reasonable. For example, responding to an assailant’s threat to punch you by shooting them is almost certainly an unreasonable response.

Insanity Defense

Although it makes for fascinating TV dramas, in real life defendants rarely plead insanity as a defense. Judges and jurors are very skeptical of these claims, and because of the abstract nature of this defense, it can be very difficult to actually prove.

The theory behind an insanity defense is the notion that in almost every criminal law, there is a “mental” or “intent” element. Often, the required mental state is that you must have intended to perform the criminal act. If a defendant is precluded from an understanding of what they’re doing because of mental illness, then they can’t possess the mental state that the criminal charge requires. From a policy standpoint, we also tend to think that it would be more appropriate to send someone who is truly insane to psychiatric care, not to prison. Thus, even if a defendant is successful in an insanity defense, they will be sent to a psychiatric institution, not set free.

So how do courts define “insane”? The most popular definition is the McNaughten test which defines insanity as “the inability to distinguish right from wrong”. To successfully win an insanity defense, a defendant will rely on testimony from a psychiatrist, and will undergo extensive psychiatric testing which can be painful and humiliating.

Under the Influence Defense

Related to the insanity defense, some defendants defend themselves by claiming that they were under the influence of drugs, and could not have had the mental state necessary to commit the crime. In other words, they were too high to really know what they were doing. Only a few states allow this defense, and even then, it is only a partial defense. At best, it will lower the crime you are convicted of to a lesser crime.

Entrapment Defense

Entrapment defenses are appropriate when a government official induces you to commit a crime. Common examples of this are prostitution stings or drug sales. The theory is that the government shouldn’t be allowed to push you into committing a crime and then convicting you for it.

This defense won’t be successful if the judge or jury believes you were predisposed to committing the crime, however. So even if an undercover officer offered to sell you illegal drugs, if you have a history of drug use, then an entrapment defense isn’t likely to be successful.

The Differences between a Criminal Case and a Civil Case

The American legal system is comprised of two very different types of cases, civil and criminal. Crimes are generally offenses against the state, and are accordingly prosecuted by the state. Civil cases on the other hand, are typically disputes between individuals regarding the legal duties and responsibilities they owe one another.

Here are some of the key differences between a criminal case and a civil case:

  1. Crimes are considered offenses against the state, or society as a whole. That means that even though one person might murder another person, murder itself is considered an offense to everyone in society. Accordingly, crimes against the state are prosecuted by the state, and the prosecutor (not the victim) files the case in court as a representative of the state. If it were a civil case, then the wronged party would file the case.
  2. Criminal offenses and civil offenses are generally different in terms of their punishment. Criminal cases will have jail time as a potential punishment, whereas civil cases generally only result in monetary damages or orders to do or not do something. Note that a criminal case may involve both jail time and monetary punishments in the form of fines.
  3. The standard of proof is also very different in a criminal case versus a civil case. Crimes must generally be proved “beyond a reasonable doubt”, whereas civil cases are proved by lower standards of proof such as “the preponderance of the evidence” (which essentially means that it was more likely than not that something occurred in a certain way). The difference in standards exists because civil liability is considered less blameworthy and because the punishments are less severe.
  4. Criminal cases almost always allow for a trial by jury. Civil cases do allow juries in some instances, but many civil cases will be decided by a judge.
  5. A defendant in a criminal case is entitled to an attorney, and if he or she can’t afford one, the state must provide an attorney. A defendant in a civil case is not given an attorney and must pay for one, or else defend him or herself.
  6. The protections afforded to defendants under criminal law are considerable (such as the protection against illegal searches and seizures under the 4th Amendment). Many of these well known protections are not available to a defendant in a civil case.

 

In general, because criminal cases have greater consequences – the possibility of jail and even death – criminal cases have many more protections in place and are harder to prove.

The Same Conduct Can Produce Civil and Criminal Liability

Although criminal and civil cases are treated very differently, many people often fail to recognize that the same conduct can result in both criminal and civil liability. Perhaps one of the most famous examples of this is the OJ Simpson trial. The same conduct led to a murder trial (criminal) and a wrongful death trial (civil). In part because of the different standards of proof, there was not enough evidence for a jury to decide that OJ Simpson was guilty “beyond a reasonable doubt” in the criminal murder case. In the civil trial, however, the jury found enough evidence to conclude that OJ Simpson wrongfully caused his wife’s death by a “preponderance of the evidence”.

Classifications of Crimes

Crimes receive different classifications according to their severity. The mildest crimes are known as infractions, more serious crimes are known as misdemeanors, and the most serious crimes are known as felonies. The classification of a crime influences both the substance and procedure of a criminal charge, so it’s important to understand the differences between the classifications. This section describes each classification and examines how they differ from one another.

What Distinguishes a Misdemeanor From a Felony?

Felonies and misdemeanors are two classifications of crimes used in most states, with petty offenses (infractions) being the third. Misdemeanors are punishable by substantial fines and sometimes jail time, usually less than one year. Felonies are the most serious type of crime and are often classified by degrees, with a first degree felony being the most serious. They include terrorism, treason, arson, murder, rape, robbery, burglary, and kidnapping, among others.

What is an Infraction?

Infractions are the least serious type of crime. Typically, a police officer will see someone doing something wrong, write a ticket and hand it to the person. The person then has to pay a fine. Infractions usually involve little to no time in court (much less jail), and include things like traffic tickets, jaywalking, and some minor drug possession charges in some states. However, if infractions remain unaddressed or unpaid, the law typically provides for an increasing range of fines and potential penalties. Common infractions are seatbelt violations, simple speeding tickets, littering citations, running a red light, and failure to stop properly at a stop sign.

Accomplices

Accomplice liability allows the court to find a person criminally liable for acts committed by a different person. If a person aids, assists, or encourages another in the commission of a crime, they are said to be an “accomplice” to the crime. The person who actually commits the act is called the “principal.” The crime for which an accomplice provides assistance is called the “target crime.”

Civil vs. Criminal Cases

Civil cases usually involve private disputes between persons or organizations. Criminal cases involve an action that is considered to be harmful to society as a whole. Criminal cases almost always allow for a trial by jury. Civil cases do allow juries in some instances, but many civil cases will be decided by a judge. he protections afforded to defendants under criminal law are considerable (such as the protection against illegal searches and seizures under the 4th Amendment). Many of these well known protections are not available to a defendant in a civil case.

Hiring a Criminal Defense Attorney

If you are involved in any way with a misdemeanor or felony charge, you should seek legal assistance as soon as possible. An experienced criminal defense lawyer can help determine whether you are liable as an principal or accomplice, and whether any defenses may be raised in your favor. You may wish to hire a criminal defense attorney in your area for legal advice and representation in court.

Criminal Law Basics

Since criminal law is such a broad subject area, navigating it can be an overwhelming task if you lack an understanding of the controlling laws and procedures. This section provides an introduction to the basic principles behind the criminal justice system, including police investigations, criminal trials, classifications of crimes, and the mental states required of certain crimes. You’ll find articles on self-defense and stand your ground laws, the differences between felonies and misdemeanors, the role of the jury in a criminal trial, the steps from being charged to going to trial, and how civil suits differ from criminal cases.

Mens Rea

Mens Rea is a fancy way to say “mental state.” Culpable Mental State refers to the state of mind of an individual while committing a crime. Generally, a crime requires that a guilty act or omission (the actus reus) be committed with the required degree of guilty mind. Generally, certain acts are crimes only if done with a particular state of mind, and that a certain sort of criminal act is more or less serious depending on the perpetrator’s state of mind at the time. The prosecution must prove beyond a reasonable doubt that, the accused did so with the state of mind required for the commission of that particular crime in order to convict the accused. A very few acts that amounts to strict liability offenses are criminal, however they are done. The term, Culpable Mental State is synonymous with mens rea (guilty mind).

Classification of a Crime

The classification of a crime is based on the extent of punishment that can be given for committing it. There are two major types of crimes in the United States: felonies and misdemeanors. The punishment is usually based on the seriousness of the crime. States may differ as to the classification of any particular crime. A crime committed in one state may be classified differently than if it was committed in another state.

A felony is considered a serious crime. Most states and the federal government classify a crime that’s punishable by more than one year in prison as a felony. A felony that’s punishable by death is considered a capital crime.

A misdemeanor is considered a less serious crime. Most states and the federal government classify a crime that’s punishable by less than one year in prison as a misdemeanor. Some states consider a misdemeanor as any crime that’s punishable only by fine or a small length of time in jail. If a misdemeanor is considered a very minor offense, such as jaywalking, the crime may be classified as a petty offense.

How a Criminal Defense Attorney Can Help You

Attorneys aren’t needed for every criminal case, but in many cases legal assistance can be beneficial, if not crucial. With the complex nature of some criminal procedures and emotions running high, it often helps to have a knowledgeable resource for information and a skilled advocate for negotiations and likely court proceedings.

Criminal defense lawyers know about the different pleas that a person may make. Negotiating with the prosecution for a reduced sentence is one of the most important parts of a trial. A good lawyer may be able to negotiate a compromise with the prosecution for a less severe sentence for a particular person charged with a crime.