Elmer McDuffy: Criminal Defense Lawyer Orem Utah

If you are facing a criminal trial, speak to an experienced Orem Utah criminal defense lawyer. In every criminal trial, the government is constitutionally required to prove its case against the defendant beyond a reasonable doubt. Additionally, defendants in criminal cases have a constitutional right to be free from compelled self-incrimination. Taken together, these concepts mean that in criminal cases, the government must independently investigate, obtain and present evidence against defendants. Criminal defendants are not required to speak or otherwise respond to the government’s case against them, and the government shoulders the entire responsibility for proving its case.

Notwithstanding these prosecutorial responsibilities and constitutional protections, many criminal defendants voluntarily choose to present evidence during a criminal trial in response to the government’s case. Such evidence might challenge the government’s case-in-chief and/or attempt to present an excuse or justification for the defendant’s behavior. Evidence challenging the government’s case-in-chief will usually seek to demonstrate that the government does not have sufficient evidence to prove one or all of the material elements of the crime (i.e., the act, the mental state, causation and social harm) beyond a reasonable doubt. In challenging the government’s case-in-chief, a defendant might also introduce evidence designed to prove that the government has charged the wrong person. This is known as an “alibi” defense, and the defendant will typically present evidence in the form of witness testimony that establishes that he could not have committed the crime because he was elsewhere at the relevant time of the offense. Finally, a defendant may also counter the government’s case-in-chief evidence by vigorously attacking the accuracy and credibility of government witness testimony. By using these strategies, a criminal defendant is essentially challenging the government to meet its constitutional burden and prove its case beyond a reasonable doubt. But if a defendant is under no obligation to present a defense or even speak during a criminal trial, why would any defendant voluntarily choose to present a defense? Why not simply remain silent and put the government to its proof?

One reason may be that the defendant is innocent of the offense charged and wishes to present his or her story to the judge or jury. While the government has an obligation to collect evidence and prove its case, it is certainly under no obligation to present evidence favorable to the defendant during the trial. Another reason may be that the prosecution has amassed a compelling amount of evidence pointing to the defendant’s guilt, and the defendant believes it would simply be too risky to allow that evidence to be offered at trial without challenge. Finally, in the face of overwhelming evidence of guilt, the defendant may wish to present evidence that his or her conduct at the time of the offense was either justified or should be excused. A defense offered to justify or excuse the defendant’s conduct is known as an affirmative defense. By presenting an affirmative defense, the defendant is admitting that he or she engaged in the conduct charged, but is offering an excuse or justification for the behavior. In other words, the defendant is arguing: “Yes, I did it, but I have an (excuse and/or justification) for my conduct.” When offering an affirmative defense, courts have determined that it is fair to place the burden of proof on the defendant because the defendant is raising the defense and is likely to have the most relevant evidence available to support the defense. Affirmative defenses are controversial because the defendant admits engaging in the conduct charged, but is asking to be partially or completely relieved of responsibility or punishment. Yet, many of these defenses remain popular precisely because, for defendants, they represent an opportunity to secure an acquittal or at least a reduced punishment despite the admission of responsibility.

SELF-DEFENSE

If believed, a defense of self-defense presents a complete justification for the crime charged. This means that if the judge or jury believes that the defendant acted in self-defense, he will be completely acquitted of the criminal charges. Self-defense is typically presented in criminal trials when the defendant has been charged with murder or manslaughter. When presenting this defense, the defendant essentially argues that he used reasonable force to defend himself from an imminent unlawful attack and that he reasonably believed that such force was necessary to repel the attack. Depending upon the nature of the imminent unlawful attack, in some instances self-defense will permit the use of deadly force. Deadly force is force by whatever means that is highly likely to cause death or serious bodily injury to the victim.

Defendant as Aggressor

To properly raise a defense of self-defense, a defendant cannot be the aggressor. This means that the defendant cannot instigate an altercation and then claim self-defense when the victim of his attack responds to his aggression with force.

Under the law of self-defense, a person who is the aggressor is not entitled to use deadly force to repel an attack unless he first retreats and gives an indication that he is no longer a threat to the victim. If the victim persists in responding to the aggressor after the aggressor retreats, then the aggressor may respond with deadly force.

There are at least two ways a defendant can become the aggressor. First, as in the example, a defendant who starts an altercation is considered the aggressor and may not claim self-defense if his aggression is met with deadly force unless he first retreats. Second, a person who escalates an encounter can become the aggressor. So, for example, if an encounter begins with the use of nondeadly force by the aggressor, and the victim responds with deadly force, the victim, by responding with deadly force, becomes the aggressor because he has escalated the encounter to the level of deadly force. The person who escalates the encounter would not have a valid self-defense argument since it is almost never considered reasonable to use deadly force in response to a nondeadly attack.

Retreat

A person who instigates an encounter by using deadly force must first retreat before using deadly force to defend himself from a responsive deadly force attack by the victim. In some jurisdictions, the retreat doctrine is much broader, such that a victim who is initially threatened by an aggressor with deadly force must “retreat to the wall” before he may respond with deadly force. This means that the victim of an imminent, unlawful and deadly attack must do everything possible to avoid using deadly force, although he does not have to go so far as to place himself in greater danger (e.g., running into a busy intersection to avoid a gun-wielding aggressor). Also, a victim of a deadly attack does not have to retreat in his own home. The law does not force a person to flee the safety of his home in order to avoid an unlawful attack. The “retreat to the wall” doctrine is used in only a few jurisdictions, and most continue to adhere to what is known as the “hue man” rule, which means that a person threatened with deadly force can stand his ground and respond with deadly force.

DEFENSE OF OTHERS

A person may use reasonable force to defend another person who is the victim of an unlawful attack. If the victim is threatened with or subjected to the use of deadly force, then the person coming to his defense may use deadly force in response. Problems arise when the person coming to the aid of a victim misinterprets the situation and uses force that is inappropriate under the circumstances. For example, a person may encounter two people engaged in a physical altercation and decide to step in and use deadly force to defend one of the parties. If it turns out that the victim of the attack would not have been entitled to use deadly force, then the person coming to his assistance would not be justified in using such force either, regardless of his perception of the situation. In this instance, the person offering assistance is said to “stand in the shoes” of the victim, and if the victim would not have been able to use deadly force during the encounter, then any person coming to his assistance will not be entitled to use such force either. Indeed, the person offering assistance may be criminally liable if his unjustified use of force results in harm to another.

DEFENSE OF PROPERTY

Deadly force may not be used to protect property under any circumstances. The reason for this is simply that human life should be valued over real or personal property. Nonetheless, some jurisdictions have enacted “make my day” laws. These controversial statutes allow homeowners to use whatever level of force is necessary against intruders who enter the home and threaten to use any type of force against the homeowner or anyone in the home. Although these statutes do not permit the homeowner to use force merely to protect his property, they do allow the homeowner to insure safety within his home when someone enters the home with the intent to use force against him or other occupants in the home.

INTOXICATION DEFENSE

A defendant may use a defense of voluntary intoxication to prove that she did not have the necessary intent to commit the crime charged. When presenting this defense, the defendant is claiming that her mind was so affected by drugs or alcohol that she could not form the required intent to commit the crime or, in some cases, could not perform the voluntary act required by the criminal statute. The intoxication defense is very controversial because of the general belief that a voluntarily intoxicated person should be responsible for the consequences of her actions.

Nevertheless, in many jurisdictions, the defendant’s state of voluntary intoxication may serve as a defense if it prevents her from forming the necessary intent to commit a particular offense. The defense is sometimes limited, however, and in some jurisdictions the defendant may only present a defense of voluntary intoxication when charged with crimes that require specific intent. So, for example, if a defendant is charged with the crime of larceny (a specific intent crime), she may present an intoxication defense to show that, because of her intoxication, she could not form the specific intent to steal. The theory is that while the defendant might be generally aware of her conduct, her mind is too clouded by alcohol or drugs to think about and form the specific intent to permanently deprive the owner of the property as required by the larceny statute.

Even when limited to demonstrating lack of specific intent, the intoxication defense is still very controversial. As indicated earlier, the controversy is based, in part, on the fact that the law should strongly discourage individuals from becoming intoxicated to the point of engaging in criminal conduct. Allowing an intoxication defense, even in limited circumstances, significantly interferes with this deterrence objective. There is also a realization that rather than preventing the formation of intent to commit a crime, alcohol may indeed embolden some individuals to engage in criminal activity. For these reasons, a few jurisdictions have completely eliminated the defense of voluntary intoxication even for crimes that require proof of specific intent. Again, the theory is that defendants who become voluntarily intoxicated should be responsible for the consequences of their actions.

Involuntary intoxication, however, remains a valid defense to criminal conduct. Involuntary intoxication can occur, for example, when a person erroneously takes more than the proper dosage of medication or becomes unusually and unexpectedly intoxicated by an amount of alcohol that would not have such an effect on the average person. Under such circumstances, if the intoxicated state is truly involuntary and unexpected, then the person is not considered responsible for any resulting criminal conduct because, in fact, the person did not act voluntarily and/or with the necessary mental state.

An experienced Orem Utah criminal defense lawyer can assist you fight the criminal charges against you. Depending on the circumstances of your case, you may have defenses available.

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When you need legal help to defend against criminal charges against you, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with DUI charges. Theft Charges. Assault.
Battery crimes. Sex crimes. Drug Crimes. And Much More. We can even help you expunge your criminal record when everything is done and over – so long as you qualify. We want to help you.