Elmer McDuffy: Criminal Defense Lawyer Lehi Utah

Certain criminal charges are serious charges. If you have been charged with a serious criminal offense like murder or rape, contact an experienced Lehi Utah criminal defense lawyer.

Since one of the main criteria for determining whether a defendant meets the standard for voluntary manslaughter is whether there was adequate (reasonable) provocation, it is important to identify the types of circumstances that might constitute adequate provocation. The following list, while not exhaustive, provides some guidance as to the kinds of circumstances likely to be considered adequate provocation.

• Discovering an unfaithful spouse in a “compromising position.” While the common law right to claim “heat of passion” was limited to husbands discovering wives in such circumstances, today it applies equally to wives as well. Additionally, “heat of passion” might be available for the discovery of unfaithful conduct in nonmarital relationships.

• Witnessing violence against a third party, usually a relative.

• Being the victim of an unprovoked and violent battery.

• Hearing about certain conduct that would constitute adequate provocation if actually viewed. For example, if the defendant hears about the violent battery of his mother, this might constitute adequate provocation.

Two circumstances that typically do not rise to the level of adequate provocation are hearing mere words (no matter how obscene or derogatory) and witnessing damage to property. The rationale for excluding mere words as adequate provocation is twofold. First, allowing a person to exact “punishment” on another for uttering mere words could potentially interfere with the victim’s constitutionally protected right to free speech. Second, it would be difficult, if not impossible, to determine exactly which words constitute adequate provocation in any given situation. While some words might be universally considered offensive, the meaning and impact of words change over time; even if a list could be compiled, it would have to be continually modified as society’s understanding and acceptance of terms changed.

The rationale for not allowing damage to property to serve as adequate provocation for voluntary manslaughter is simply that human life is to be valued over and above material possessions, no matter how valuable and cherished. Additionally, there are other mechanisms in place, both criminal and civil, for addressing the violation of property rights.

Cooling Off

As previously explained, a person who has been adequately provoked must not have cooled off in order to fit the criteria for voluntary manslaughter. The term “cooling off” generally means that the person has had sufficient time to recover from the disturbance that ignited the passion. As it is difficult to determine what constitutes sufficient time to cool off, each situation must be evaluated on its own facts. When considering whether a defendant has cooled off, it is necessary to examine all of the surrounding circumstances that provide evidence of the defendant’s mental state, as well as the amount of time that has elapsed since the incident that inflamed the passion. For example, did the defendant appear outwardly calm? Was he performing everyday activities in a seemingly normal fashion? Did he physically remove himself from the situation that inflamed the passion? Did he verbally indicate that he had calmed down? Were there any factors that could have reignited the passion?

These factors do provide circumstantial evidence from which we can begin to draw reasonable inferences with respect to the defendant’s mental state.

Voluntary Manslaughter and Causation

Causation is a particularly important issue in voluntary manslaughter cases because an unlawful killing may be reduced from murder to voluntary manslaughter if it is determined that the defendant’s conduct was caused or provoked by certain behavior. The circumstances must therefore be carefully analyzed to establish whether the “provocation” actually caused the violent reaction by the defendant.

Voluntary Manslaughter as a Defense

Because voluntary manslaughter allows conduct that closely resembles intentional murder to be reduced to a lesser offense based upon adequate provocation, it is often used as a defense to a charge of intentional murder. A defendant using voluntary manslaughter as a defense in a criminal trial essentially admits the wrongful act–the unlawful killing. However, the defendant argues that rather than being motivated by malice aforethought (the necessary element for murder), he was adequately provoked by the circumstances surrounding the crime, that is, he acted without malice aforethought. If, after examining the necessary requirements for adequate provocation and cooling off, the judge or jury believes this defense, then the defendant will be convicted of and punished for the lesser offense of voluntary manslaughter.

Involuntary Manslaughter

Involuntary manslaughter is an unintentional death that results from the commission of an unlawful act not amounting to a felony or from the commission of a lawful act in a criminally negligent fashion.

Unlawful Act Not Amounting to a Felony

One theory of involuntary manslaughter attributes moral blameworthiness to a defendant if a death results while the defendant is committing an unlawful act not amounting to a felony. The defendant’s unlawful act typically violates a misdemeanor statute that is designed to protect human life.

A Lawful Act Done in a Criminally Negligent Manner

A defendant may also be liable for an unintentional death caused while he is acting in a lawful, but criminally negligent, manner.

Involuntary Manslaughter and Causation

In cases of involuntary manslaughter, the defendant’s unlawful or negligent conduct must be the cause of the unintentional death. One area where this issue has become somewhat controversial is the context of driving while intoxicated.

Murder and Voluntary Manslaughter

The distinguishing factor between murder and manslaughter is the concept of malice aforethought. Murder is an unlawful killing with malice aforethought, while manslaughter is defined as an unlawful killing without malice aforethought. As discussed earlier in the chapter, there are two species of manslaughter: voluntary and involuntary. Voluntary manslaughter involves intentional conduct and, in many instances, closely resembles the conduct necessary for intentional murder. That is, the defendant intentionally commits an unlawful killing. However, in cases of voluntary manslaughter, depending upon the factual circumstances, the defendant will not be guilty of the greater crime of murder because the criminal law recognizes that human beings may occasionally be driven to act “in the heat of passion.”

Criminal sexual assault covers a broad range of sexual conduct that occurs by force and without the victim’s consent. The unlawful sexual conduct can be divided into two categories:

• Sexual intercourse, which is the most serious of the categories, includes nonconsensual vaginal and anal intercourse as well as oral-genital contact. For this offense, there is typically a requirement that some type of bodily penetration occur, no matter how slight. When these acts are combined with force and lack of consent, this conduct is commonly referred to as rape.

• Sexual contact, a lesser offense, includes nonconsensual sexual touching of the victim in certain areas (e.g., genitals, breasts, thighs) for the purpose of sexual arousal or gratification. Unlike sexual intercourse, there is no requirement that any type of bodily penetration occur, and the touching may occur over or under the victim’s clothing.

To be classified as criminal sexual assault, the sexual conduct must occur by force and without the consent of the victim.

Force

In rape cases, force can take the form of actual physical force, threat of force, or taking advantage of circumstances that render the victim helpless or somehow unprotected. A threat of force must usually be a threat of serious bodily injury and, therefore, does not include threats that involve the deprivation of property, such as loss of employment. Force may also include instances when the victim is in a helpless or unprotected state such that the rape can occur without actual or threatened force.

Without Consent

In addition to the element of force, the sexual conduct must occur without the consent of the victim. To determine whether there is lack of consent, the victim’s conduct must be examined. Since the primary focus of criminal law is punishment of those who are morally blameworthy, criminal cases almost always examine the conduct of the defendant in order to assess criminal liability. Therefore, one obvious question that arises in rape cases is, Why is there such a concern with the victim’s conduct? The answer to this question involves the nature of the underlying conduct. Because the underlying conduct, sexual intercourse, is lawful if engaged in by consenting adults, the question for purposes of criminal liability becomes: When does inherently lawful conduct cross the line to become unlawful conduct? Examining the element of force alone to answer this question would not yield an entirely reliable result because, theoretically, the parties could consent to the use of force in sexual conduct. Thus, we need to examine both force and whether there is a lack of consent in order to determine when lawful sexual conduct crosses the boundary and becomes rape or other unlawful sexual conduct.

Historically, lack of consent was measured by whether the victim resisted. Although at common law the victim was required to “resist to the utmost” (usually this meant physically resisting the attacker), today the law recognizes verbal resistance as well as circumstances when there may be a complete lack of resistance. This expanded definition of resistance acknowledges that victims of sexual assault should not be required to physically defend themselves in order to establish that a rape occurred, particularly when such physical resistance might result in greater harm to the victim.

Lack of consent may also be present if the victim’s consent is induced by fraud. It should be noted that in instances when the victim is induced by fraud to consent to sexual intercourse, although it appears that no force is used, in fact the force is “constructive.” Criminal law will imply the use of force in situations when victims are rendered helpless or unable to protect themselves for whatever reason, even if that reason is based upon what turns out to be misplaced trust in a preexisting relationship.

Date Rape

One of the most conceptually difficult and controversial categories of sexual assault is date or acquaintance rape. In these instances, the parties either have a preexisting dating relationship or have recently become acquainted prior to the rape incident. This preexisting relationship or acquaintanceship adds yet another layer of complexity to the determination as to when consensual interaction crosses the boundary into illegal conduct. One of the most troublesome evidentiary aspects of date/acquaintance rape cases is that the parties involved are highly likely to have diametrically opposed recollections of the events. Since the victim and the defendant are often the only witnesses to the events surrounding the date/acquaintance rape, the judge or jury must sort out all of the factual evidence presented and ultimately assess the credibility of the two individuals involved. In the end, the verdict will depend upon who presents the most credible version of events, considering all of the factual circumstances.

Although blaming the victim and/or forcing her to discuss her sexual history in open court can be a disturbing facet of any rape prosecution, it is particularly acute in cases of date/acquaintance rape. Because the prior relationship between the parties overshadows the issues of force and lack of consent, from an evidentiary perspective, it may appear that more force and more resistance are necessary to establish that consensual behavior has crossed the boundary into unlawful sexual conduct. Additionally, when refuting the evidence against him in a date/acquaintance rape case, the defendant may be able to introduce evidence of prior consensual sexual conduct with the victim. This will inevitably compel the victim to suffer the embarrassment associated with publicly revealing the intimate details of her sexual history with the defendant.

One practical consideration in these types of “close” cases when the evidence is sharply conflicting and the costs for the victim are unusually high is whether the criminal trial process is the most appropriate forum for resolving these issues. In other words, given the enormous potential for public humiliation of the victim and the uncertainty of the outcome at trial, would a private forum be more effective in terms of resolving the issues and reducing the victim’s potential exposure to further victimization? This private option for resolution assumes that in some instances, particularly if the parties had a dating relationship, the victim may not desire a public criminal prosecution of the defendant and the public humiliation often associated with that process. Instead, she may simply want to confront the defendant, force him to admit his guilt and accept responsibility for his behavior. In this private setting, it may be possible for the victim to regain the sense of power and control that she lost as a result of the defendant’s unlawful conduct. Moreover, knowledge that a private resolution option is available may encourage more victims of date/acquaintance rape to come forward because it removes the potential for further humiliation that undoubtedly deters many victims from reporting these offenses.

Obviously, a private resolution of the issues should only be considered an option for the victim and should not be considered if the victim desires a resolution through the criminal trial process.

Hire the services of an experienced Lehi Utah criminal lawyer. After studying your case, the lawyer can develop a successful defense strategy.

Lehi Utah Criminal Defense Attorney Free Consultation

When you need legal help from a criminal defense lawyer for drug crimes, sex crimes, DUI, larceny, theft, etc., please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.