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Criminal Defense

General considerations
• - As with any legal case, everything depends on the facts. When one is facing any criminal charge, there are a few things that you and your 1LAW attorney need to discuss. First and foremost, be upfront and honest with your attorney. You will save yourself a lot of heartache, and your attorney a lot of frustration, if you tell the truth up front. Facts make all the difference, and being open and honest with your attorney can only help you!

Probation and Parole
• -In order to avoid jail time, or as a condition of one’s release from jail, probation can be ordered. Probation allows a person to keep their freedom, as long as he or she meets certain conditions. Conditions of probation can range from restrictions to a person can associate with to abstinence from alcohol. Violation of these conditions can lead to a revocation of probation and jail time.Parole is a situation in which a person gives the court some kind of security (such as money or a deed to a house) in order to maintain his or her freedom during the criminal process (such as during trial preparation). If parole is violated (i.e. one jumps bail and does not show up for a hearing), the result is usually incarceration.If you have any questions or concerns regarding probation or parole, please contact one of our experienced criminal attorneys for a free consultation.
• 5 things to expect from you criminal defense attorney
  1. Ethical, vigorous, and active defense
  2. Presentation of all options with recommendations and opinions
  3. Complete preparation of each step of the legal process.
  4. Review of all scenarios, interviewing of witnesses, review of evidence.
  5. Presentation of reasonable doubt and minimization of exposure to penalty.

Felonies and Misdemeanors
• - All of us have probably heard the terms felony and misdemeanor at one time or another, but the consequences are quite different. Felonies are usually punishable by a year or more in jail and can range from stealing selling drugs to threats to murder. Misdemeanors are usually punishable by a year or less in jail and can range from drug possession to prostitution to a speeding ticket. For either type of case, it is essential that you contact a criminal defense attorney at 1LAW. We will meet with you before your arraignment, review your case, and come up with a plan of attack.

Defendants Rights
• 1. Right to an Attorney – in any criminal proceeding, the defendant has the right to legal representation throughout any proceeding involving his or her case. If one cannot afford an attorney, the court will appoint one for the indigent defendant (although he or she may be asked to repay all or part of that cost in the future).
  2. Right to a Fair Trial – The accused has a right to a public trial with a jury composed of one’s peers. The defendant is to be presumed innocent and he or she must be convicted beyond a reasonable doubt.
  3. Right to Confront Accusers/Witnesses – The accused has the right to face his or her accusers and cross examine witnesses.
  4. Fifth Amendment Rights – The accused has the right to remain silent, in other words, the accused is not obligated to incriminate oneself. The accused also has the right to testify on his or her own behalf.
  5. Right to Produce Evidence – The accused has the right to present evidence and to have the court subpoena all witnesses that may give testimony favorable to him or her.

Sentencing
• - As stated above, you must share all of the relevant facts with your attorney. Tell your attorney everything! The severity of any sentence will vary with the circumstances and the following factors will come into play: prior convictions, being on probation or parole, culture of the jury, media attention, as well as mitigating and aggravating circumstances. There are several things that can help you in the sentencing process as well, such as: evidence of good character (letters of reference etc.), employment history, and community service. Another very important concept is your rights under the Fifth Amendment. There is absolutely nothing wrong with exercising your right to remain silent (if you or a loved one has been approached by law enforcement, call 1Law immediately). You have no obligation to consent to an interrogation outside of the presence of your 1Law attorney. Finally, do not conduct your own investigation. This is essential in order to avoid the appearance of distortion of evidence.

Guilty Plea
• - There are going to be times when all one can hope for is a guilty plea. A good attorney may be able to bargain with the prosecution in order to allow to plea down to a lesser charge (plea bargain). Another principle to consider is that trials are a financial drain on the state, so most judges are willing to allow such bargaining to occur in order to allow the state to save money.

Strict Liability Crimes
• - Strict liability means, in a nutshell, that for certain actions, there is no defense (unless outright innocence can be proven). In essence, for certain crimes, there are no mitigating circumstances to which a person can plea. The two best examples of this type of crime are sexual relations with those under age (aka statutory rape) and obtaining/vending alcohol/tobacco to those under age (also known as contributing to the delinquency of a minor). In every jurisdiction, there is a minimum age that one must be in order to be able to consent to sexual relations with an adult (usually 18), and sexual relations by an adult with someone who is underage is always illegal and the only defense is factual innocence. This means that he or she “looked old enough” is not a defense to statutory rape. Nor is it a defense to contributing to the delinquency of a minor. For this reason, it is absolutely essential that you obtain the services of an attorney that is an experienced negotiator if you have been accused of a strict liability crime. If this is the case, please consult with a criminal defense attorney at 1LAW.

Length of Trial
• - The amount of time a trial takes varies with the severity of the charge. A misdemeanor trial may take a day at the most while a felony trial can take months or even a year to complete.

Aggravating Circumstances
• - Like everything else in the realm of law, facts are the key. In some circumstances, there are aggravating circumstances that can enhance one’s sentence above and beyond the typical sentence for a given crime. Aggravating circumstances are usually found in terms like “aggravated assault” or “aggravated robbery”. In cases in which the term “aggravating” is used, typically a weapon, or threat of use thereof, is involved. The weapon need not be visible and the use of a weapon can include the representation that one has a weapon (even if the perpetrator does not have a weapon). In other words, if a person so such as points a finger underneath his or her coat and states “I have a gun, give me all of your money!” that would constitute aggravated assault and robbery. The weapon involved in these types of circumstances us usually some type of deadly weapon such as a gun or knife.

5th amendment rights
• - The Constitution of the United States gives one the freedom from self incrimination. When being interrogated by law enforcement, one does not have to say anything to the interrogators outside the presence of his or her attorney. In regard to the judge, one’s Fifth Amendment freedom from self incrimination is limited. For example, when one is entering a plea or accepting a plea deal, one must answer questions from the judge in regard to one’s understanding of the consequences of his or her actions. Another important principle that falls under the Fifth Amendment is one’s choice whether or not to testify at his or her trial. If the judge is doing things correctly, a judge will instruct the jury that a failure to testify is not an admission of guilt.

When to talk and who to speak with
• - Ideally, one would only speak about the facts of his or her case with another person that a privilege of confidentiality applies to; such as a spouse, an ecclesiastical leader, or an attorney. It is important to remember that any statements to anyone that a confidentiality privilege does not apply to can be used against them. If you only give information to your attorney, he or she can tell your story in a matter that it consistent with the theme of your defense.

Witnesses
• - Witnesses will appear in court at the request of either the prosecution or the defense. Your 1Law attorney will determine when the proper time is to introduce witnesses and will also determine how to cross examine prosecution witnesses. Witnesses usually appear during trial, but can also be valuable during sentencing.

Common defense to criminal charges
• - We hear about criminal activity often, yet the defenses are by and large left out of any discussions in the public forum. There are many defenses to criminal charges. Some of the most common defenses that are used include:
  • Self defense
    – This is perhaps the most commonly heard defense to any criminal charge. Typically, in order for this defense to work, one must reasonably believe that force (including deadly force) is necessary to prevent death or serious bodily injury, or to prevent a felony from occurring (murder, rape, robbery etc.). The latter also falls under a category called defense of others. Typically, there is no duty to retreat in such situations, but it can be used as a factor in determining just how reasonable the force was.
  • Defense of property
    – Force (including deadly force) can be used in the defense of property, however, it is very important to remember that the property involved must be “real” property (home, barn, detached garage – any kind of property that is not transportable). In essence, you cannot shoot somebody who is trying to steal your car unless your life is in danger. However, when you are in your home and there is a burglary in progress, deadly force is a defense that is available (this principal applies to other real property, such as barns, as well).
  • Compulsion
    – This defense is available when a person is forced to commit a crime and a reasonable person would not have resisted such force. This defense is not available, typically, if a person recklessly places himself or herself in a situation that would cause such duress.
  • Mistake of fact
    – As stated above, this defense is not available for strict liability crimes such as statutory rape. However, a person that has been charged with a crime that does not involve strict liability is allowed a certain amount of leeway in regard to the circumstances necessitating such an action. For example, when a person is observing what appears to be an assault and battery between two people play boxing on a street corner, a defense of mistake of fact is available to the perpetrator.
  • Mistake of law
    – When one wants to claim that a mistake of law was made, there must be a reasonable reliance on some kind of interpretation of the law. In other words, a person cannot claim that the law was interpreted to them by a friend (for example), there must be an official statement of the law (such as a grant of permission from an administrative agency) that the perpetrator is relying on. (this distinction is very important, because ignorance of the law is not a defense to breaking it but a reasonable mistake is).
  • Consent
    – This is a common defense in rape cases. There are several caveats to the consent defense however. For example, such consent cannot be gained with threats of force/retaliation against the victim, the consent must come at the volition of the free will of the alleged victim. Another good example of where a defense of consent might come in handy is when there is an altercation that both parties consent to. For example, when two people are in a boxing match, one of the parties cannot later claim that an assault and battery took place. The story changes completely when a dangerous/deadly weapon is used. Typically, one cannot claim consent when someone dies and a deadly weapon enters into the dual.
  • Entrapment
    – As mentioned previously, our law enforcement officers are, for the most part, heroes that put their lives on the line all day everyday. Crime does not take a day off and neither to our brave law enforcement officials (with a few exceptions). That being said, character flaws enter into every profession, including law enforcement, and there are times when some officers seek to get people to commit crimes. The defense of entrapment arises when a law enforcement officer induces a person to commit a crime that was not otherwise predisposed to do so. The standard that is used to measure whether or not entrapment took place is usually objective (i.e. the standard is not based on one’s propensity to commit the crime, but whether or not the state improperly used its power). Also keep in mind that this defense is not available if bodily injury results.
  • Appeal
    – Anyone who has been convicted on a crime has the right to appeal that conviction to a higher court. The appellate process is meant to review certain aspects of the case in order to determine whether or not a reversible error was made at the trial (first) level. When an appeal is made, the defendant argues that his or her conviction was based on legal mistakes, and that these mistakes affected the jury’s decision. If the appellate body (such as a state supreme court) finds that reversible error was made, the case can be thrown out or the case can be sent back to the lower court for retrial.The typical appeals process involves written briefs (written arguments) by both the defense and the prosecution. It is in reading these briefs that the higher court decides whether or not it will hear oral arguments. If the court decides that it will hear oral arguments, both sides are allowed to make arguments before a panel of judges. During this oral argument, new evidence generally cannot be presented and the appellate body considers only what is put on the record at the trial level. Although it may take months for an appeal to be considered, but the defendant must generally make the intent to appeal known quite soon after conviction.
  • Expungement
    – Expungement is a term used for the removal of an arrest and/or conviction from someone’s criminal record (as if it never happened). What typically happens in a case like this is that the file is sealed (which means that no one can look at it). A legal principal that is striking in its similarity is called a plea in abeyance. When one accepts a plea in abeyance, there are certain conditions that must be fulfilled in a certain amount of time after the plea. Once those conditions are met, the conviction is removed from the record of the convict. The law on this matter varies, for example, some states do not allow the removal of felony convictions or sex offenses. An expungement can be helpful when one is seeking things such as employment and housing. If you feel that you are eligible for expungement, please call 1LAW for a free consultation.
  • Probation
    – Probation means that one is allowed to retain his or her freedom – with certain conditions. Conditions can include home confinement, travel restrictions, and even restricting the people that one can associate with. Violation of one’s conditions of probation can carry severe consequences which can include: prison sentence, fines, community service, additional fines, court ordered rehabilitation and probation revocation. Defenses include factual innocence, insufficient evidence, and proving completion of probation conditions. If you have any questions regarding probation, please consult with a 1LAW attorney.
  • Investigation
    – At 1LAW, we will provide the best representation possible, and this includes a thorough investigation prior to trial that will prevent surprise at trial. This investigation may consist of the use of private investigators who have access to tools that can uncover information and evidence that can be used in your defense. Investigation of the crime scene is another part of our pre trial investigation. Investigation of the crime scene may consist of: analysis of crime scene photos/videos, analysis of sketches/diagrams/measurements, follow up of leads, law enforcement interviews, interviews of other civic employees (i.e. ambulance drivers) witness interviews, witness location victim interviews, forensic evidence testing, polygraph tests, background investigation, location of other wrongly accused individuals, and public record searches. Our pretrial investigation will be thorough and the best appropriate methods will be used in order to achieve the results that will best achieve justice.