Criminal Defense Law
What is Criminal Defense Law?
Criminal defense law consists of the legal protections afforded to people who have been accused of committing a crime. Law enforcement agencies and government prosecutors have extensive resources at their disposal. Without adequate protections for the accused, the balance of power within the justice system would become skewed in favor of the government. As it is, fair treatment for criminal defendants often depends as much upon the skill of their defense attorney as it does the substantive protections contained in the law.
Defense attorneys know how to use constitutional guarantees to the advantage of their clients. For example, all criminal prosecutions are based upon evidence gathered by the government. This may include physical items of evidence, witness statements, confessions, drug and alcohol tests, and so forth. The Forth Amendment to the U.S. Constitution (applicable to the states through the 14th Amendment) prohibits the police from using unreasonable searches and seizures to gather evidence. If they do, a defense attorney will ask the court to suppress that evidence so it cannot be used at trial.
The Constitution provides many more protections that apply to the field of criminal defense law. Someone who has been tried and acquitted of a crime cannot again be charged with that office, as mandated by the “double jeopardy” provision of the Fifth Amendment. The Sixth Amendment guarantees criminal defendants the right to a public trial, and in many cases, the right to have their guilt or innocence decided by a jury. It also affords the right to confront adverse witnesses, and to use the court’s subpoena power to compel the appearance of favorable witnesses.
Securing a Release from Jail Pending Trial
Following an arrest, the first thing defendants will want to do is get out of jail. Besides the obvious inconveniences, being in jail prevents defendants from working and earning money in order to pay a defense attorney and meet their other financial obligations. This can be especially problematic for those who will later plead guilty and face expensive fines and assessments. Defendants who are incarcerated are also at a disadvantage because it is more difficult for them to assist their attorney in preparing a defense.
Obtaining a release from jail while a case is pending requires the defendant to post bail. In simple terms, bail is “good faith” money, giving the court a form of collateral to ensure the defendant returns to court to attend future proceedings in the case. If the defendant fails to appear, the bail money is forfeited. A defendant who cannot afford bail may use a commercial bond service or ask the judge to reduce the bail amount. Judges may agree to reduce bail if it can be shown that the defendant has strong ties to the local community and does not pose a danger to others.
Plea Bargaining Strategies
A vast majority of criminal cases never reach the trial stage. The defendant and the prosecuting attorney will instead enter into a settlement agreement known as a plea bargain. Basically, the defendant agrees to plead guilty in exchange for a lenient sentence. Defendants seeking a plea bargain can take one of two general approaches. They can fight the government at every turn, making the prosecutor’s job more difficult, and giving the prosecutor an incentive to “get rid” of the case through a plea bargain. Alternatively, defendants can fully cooperate, demonstrate true remorse, and convince the prosecutor that a lenient sentence is appropriate because they have changed their criminal ways.
Presenting a Winning Defense to the Jury
When a case does proceed to jury trial, one of the keys to success is presenting a coherent, persuasive theory to explain to the jury why the defendant has been falsely accused. The defendant’s attorney will touch upon this theory throughout the trial, creating a narrative that resonates with jury members in that community and reinforces their pre-existing beliefs about the issues in the case. Developing the right theory and presenting it effectively is the goal of every criminal defense trial lawyer.
Consider the following example. In a farming community, a day laborer is pulled over on his way home from work. He is arrested for DUI after doing poorly on the roadside sobriety test that requires balancing on one leg. At trial, his defense attorney explains that the defendant was unable to stand on one leg because he was exhausted from working on a farm all day, not because of alcohol intoxication. The jury members empathize, many of them having worked on farms themselves. After considering the evidence in light of the defense theory, the jury returns a verdict of not guilty.
Reasons to Hire a Defense Attorney
The criminal justice system is not designed for people to represent themselves. If you have been arrested, you need an attorney to stand up for your rights, fight back against overzealous police officers, and obtain the best result possible. Contact a criminal lawyer for more information.
Know Your Rights
Articles on HG.org Related to Criminal Defense Law
- Defenses to Possession of Child PornographyPossession of child pornography is a serious crime with potential harsh punishments based on state and federal charges. It is common for such charges to involve a federal investigation that turns up multiple forms of prohibited conduct.
- How a Defendant’s Grand Jury Testimony Can Be Used at TrialAnything that a defendant says has the potential to be used against him or her in a criminal trial. This includes the testimony that he or she provides during grand jury testimony. The criminal defense lawyer representing the defendant should remain cognizant of this possibility and take proactive steps to protect the defendant’s legal rights.
- DUI Offenses Explained FurtherIn states where a breathalyzer test or blood test is used as evidence, it is possible to be penalized with harsher punishments when conviction of a DUI occurs. A driver may fail both tests showing an assumption of guilt. In some states, the refusal of taking tests in the field is enough to arrest him or her.
- Explanation of Field Sobriety TestsWhen making an arrest based on a DUI charge, the officer making the arrest must decide through his or her own surveillance whether or not the suspect is illegally inebriated. Field sobriety tests are some of the ways officers may decide if impairment is at issue.
- DUI Considered a Second OffenseIn most states, a specific amount of time is allotted to when a second DUI is committed and only considered a first offense. However, other states have more strict traffic laws that determine a longer amount of time must pass. It is important to know the laws of the state the person is driving through or residing in to avoid charges of DUI offenses.
- DUI Laws - Questions AnsweredDriving under the influence arrests and charges are confusing and lengthy and may end in a license suspension or prison time with potential additional fines. In some states, the laws do not require a suspect to take the field sobriety tests officers often ask in making a DUI arrest.
- Retrograde Extrapolation ExplainedRetrograde extrapolation is the technical term and method for determining whether someone was intoxicated at the time of arrest even when testing is completed at a later time. Often in driving under the influence cases, suspects are not tested for their blood alcohol level at the time of accident or arrest. Retrograde extrapolation helps decide if the suspect was actually illegally drunk behind the wheel, though the test results may show a lower blood alcohol level once in police custody.
- DUI Felony ChargesDriving while under the influence (DUI) is a broad spectrum of charges and until recently was only considered a misdemeanor in many states, including the state of Colorado. However, now certain classes of this charge can be considered a felony, which has its own set of sanctions to follow. A felony DUI can occur in most states when a suspect has a record of at least three driving under the influence charges over a lifetime.
- DUI Felony Bill DetailsBefore new laws, all DUI cases were charged as misdemeanors in some states, unless someone was killed in a DUI accident. However, now individuals in many states who have prior conviction records may be charged with a felony DUI that issues two to six years in prison instead of the usual one year.
- DUI Explained in DetailDUI stands for driving under the influence, of drugs or alcohol, and covers an extensive range of charges and situations. Driving under the influence is strictly prohibited in any method of transportation. The officer who stops the driver usually has the discretion to make this arrest.
- All Criminal Law Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Criminal Law including: arson, assault, battery, bribery, burglary, child abuse, child pornography, computer crime, controlled substances, credit card fraud, criminal defense, criminal law, drugs and narcotics, DUI, DWI, embezzlement, fraud, expungements, felonies, homicide, identity theft, manslaughter, money laundering, murder, perjury, prostitution, rape, RICO, robbery, sex crimes, shoplifting, theft, weapons, white collar crime and wire fraud.
Criminal Defense Law - US
- American Bar Association - Criminal Justice Section
Founded in 1920, the Criminal Justice Section of the American Bar Association has over 20,000 members including prosecutors, private defense counsel, appellate and trial judges, law professors, correctional and law enforcement personnel, law students, public defenders, and other criminal justice professionals. With its diverse, multi-disciplinary membership, the Criminal Justice Section is uniquely situated to address the pressing issues facing today's criminal justice system.
- Bill of Rights - Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Criminal Procedure - Overview
Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law. Municipalities, states, and the federal government each have their own criminal codes, defining types of conduct that constitute crimes. Title 18 of the U.S. Code outlines all federal crimes. Typically, federal crimes deal with activities that either extend beyond state boundaries or directly impact federal interests.
- Effective Death Penalty Appeals Act
To amend title 28, United States Code, to clarify the availability of Federal habeas corpus relief for a person who is sentenced to death though actually innocent.
- Miranda Warning - Wikipedia
A Miranda warning is a warning given by police in the United States to criminal suspects in police custody, or in a custodial situation, before they are interrogated. A custodial situation is one in which the suspect's freedom of movement is restrained (judged by the "free to leave" test), even if he is not under arrest. An elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of his/her "Miranda rights" and made a knowing, intelligent, and voluntary waiver of those rights. However, a 2004 Supreme Court ruling upheld state "stop-and-identify" laws, allowing police in those jurisdictions to require biographical information such as name, date of birth, and address, without arresting suspects or providing them Miranda warnings.
- Sixth Amendment - Rights of Accused in Criminal Prosecutions
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Criminal Defense Law - Europe
- Criminal Defence Service Act 2006 - UK
An Act to make provision about representation funded as part of the Criminal Defence Service.
- Criminal Justice - EU
The progressive elimination of border control within the EU has considerably facilitated the free movement of European citizens, but has also make it easier for criminals to operate transnationally, especially since the scope of the law enforcement authorities and criminal justice system within the European Union (EU) has for a long time been largely limited to the boundaries of their respective States. In order to face the challenge of international crime, the EU is progressing toward a single area of justice.
- European Criminal Defense - Counsel for the Defense in Transnational European Criminal Proceedings
Research projects in the Department of Criminal Law are pursued in accordance with the department's research program. A condensed version1 of the research program is available online. The full version of the research program is also available in German (courtesy of the Walter de Gruyter publishing group).
Criminal Defense Law - International
- International Criminal Defence Attorneys Association (ICDAA)
The International Criminal Defence Attorneys Association (ICDAA) is an international non-governmental organization (INGO) dedicated to strengthening fair trial rights and an independent legal profession in the emerging international criminal justice system.
INTERPOL is the world’s largest international police organization, with 188 member countries. Created in 1923, it facilitates cross-border police co-operation, and supports and assists all organizations, authorities and services whose mission is to prevent or combat international crime.
- The International Criminal Court (ICC)
The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.
Organizations Related to Criminal Defense Law
- American Association for Justice
The American Association for Justice, formerly the Association of Trial Lawyers of America (ATLA®), is the world's largest trial bar, providing trial attorneys with information, professional support and a nationwide network that enables them to most effectively and expertly represent clients.
- Center for Criminal Justice Advocacy (CCJA)
The Center for Criminal Justice Advocacy was formed as a free, nonpartisan, grassroots training resource to assist new lawyers in becoming competent criminal trial practitioners. Our public service mission is to provide newly licensed sole practitioners and prosecutors, who toil daily in criminal courtrooms across our country, with a body of materials that support a structured analytical approach to planning, preparing, and conducting a persuasive and convincing criminal trial. Our interest is in promoting and preserving equal justice for all.
- Death Penalty Information Center (DPIC)
The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The Center was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue. The Center is widely quoted and consulted by all those concerned with the death penalty.
- Equal Justice Initiative
The Equal Justice Initiative of Alabama is a private, nonprofit organization that provides legal representation to indigent defendants and prisoners who have been denied fair and just treatment in the legal system.
- Institute for Criminal Justice Ethics
The Institute for Criminal Justice Ethics, the only nonprofit, university-based center of its kind in the United States, was established to foster greater concern for ethical issues among practitioners and scholars in the criminal justice field. Through its diverse programs it serves both as a national clearinghouse for information and as a stimulus to research and publication. It seeks to encourage increased sensitivity to the demands of ethical behavior among those who administer and enforce our system of criminal justice, a more focused treatment of moral issues in the education of criminal justice professionals, and a new dialogue among scholars and practitioners on specific topics in criminal justice ethics.
- National Association of Criminal Defense Lawyers (NACDL)
The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's more than 12,800 direct members -- and 94 state, local, and international affiliate organizations with another 35,000 members -- include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system.
- Sentencing Project
The Sentencing Project is a national organization working for a fair and effective criminal justice system by promoting reforms in sentencing law and practice, and alternatives to incarceration.