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Self-Defense vs Imperfect Self-Defense:  What's the Difference?

2/27/2015

5 Comments

 
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Most people understand the basic concept of self-defense.  If someone is attacking you, you get to defend yourself.  You generally cannot be charged or convicted of a crime for protecting yourself. 

If someone attacks you with deadly force, you can use deadly force in response.  If someone attacks you with non-deadly force, you can only use non-deadly force to defend yourself.  If you go beyond the amount of force necessary to defend yourself, you can be charged with a crime.  Also, if you start a fight with the intent to later use deadly force, you cannot then claim self-defense.

This is called reasonable self-defense or complete self-defense or perfect self-defense, and it is a complete defense to a crime.  If you kill in self-defense, that is a justifiable homicide - the killing was justified by the victim's deadly attack of you.

So, what is imperfect self-defense?  Imperfect self-defense is when you kill in what you honestly believe is the need to protect yourself with deadly force, but your belief is unreasonable.  In that case, you can be convicted of voluntary manslaughter, not murder.  But because your belief in the need for self-defense was unreasonable, this is not a complete defense, like reasonable self-defense. 

An example of imperfect self-defense would be if someone pointed a bright blue water gun at you, and you honestly believed it was a real gun and that the person was about to shoot you.  If you killed that person in response, your belief in the need for self-defense would have been honest but unreasonable.  Because your belief was unreasonable, you would be guilty of voluntary manslaughter under a theory of imperfect self-defense.

If, however, the person's toy gun was a realistic-looking toy, your belief would probably be considered reasonable, and your action in killing that person would be justified as self-defense. 

Of course, there could be other circumstances - such as who the other person was, how they were acting, or how dark it was - that might make your belief in either of these scenarios more or less reasonable.

For more on this topic, check out my article on the difference between murder and manslaughter.

Also, make sure to sign up for your FREE Writer's Guide revealing the Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama. 

5 Comments

Legal Lessons Learned from "Presumed Innocent," the Movie and Book

2/11/2014

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Although it is an older movie, "Presumed Innocent," starring Harrison Ford, is educational and can be used to teach many legal lessons.  It can be effectively used as part of a legal ethics or criminal law and procedure class. 
Presumed Innocent
The basic premise of the movie is that Harrison Ford's character, Rusty Sabich, is an assistant district attorney who is accused of murdering his colleague and lover.  His boss, the elected district attorney, played by Brian Dennehy, assigns Rusty to handle the investigation into Carolyn Polhemus' death (played by Greta Scacchi).  Along the way, he hides his relationship with her, destroys evidence, learns that the boss was also sleeping with her, and winds up accused of murder. 

Right away, there is a conflict of interest.  Probably the District Attorney's Office handling the investigation at all would be a conflict, especially in a smaller office like the one depicted in the movie.  Normally, such a case would be handled by the state Attorney General's Office.  Rusty has an even greater conflict than Carolyn's other colleagues because he had an illicit affair with her.  Rusty does not disclose his affair to his boss (even when the boss confides his own affair to Rusty), which creates a greater appearance of impropriety.

The movie does a good job of showing the different roles and obligations of prosecutors and defense attorneys.  The main character is a prosecutor who is charged with a crime.  The movie shows his interactions with his hired defense attorney, played by Raul Julia.  It shows advice given by the defense attorney to his client, like pleading the Fifth in the grand jury, even though his client may not want to take it.  It also explains why he should do so even though it will make him look guilty - you don't want to give the prosecution pre-trial statements to use against you.  The movie also shows strategic decisions made by the defense attorney along the way.

There is a part in the movie where the prosecutor wants to put in evidence statements that Rusty made to him.  The judge correctly rules that the the prosecutor will not be permitted to testify in the case unless he steps down as prosecutor and lets someone else take over the case.  This points to a key mistake that many books, TV shows, and movies make, which is having the attorney investigate crimes and question witnesses alone.  That's what investigators are for.  (Learn more about this in my free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.)

"Presumed Innocent" also shows the practical reality that sometimes things outside the courtroom can make all the difference in the outcome of a case.  (SPOILER ALERT)  In that case it was the defense attorney's knowledge of the trial judge's past unethical behavior that gave the defense an edge. 

The movie can be used as a good example of how to show probable cause to get a search warrant.  In the movie, the police had Rusty's fingerprints on a glass in Carolyn's apartment, phone records showed many calls between Rusty and Carolyn, including one call the night of the murder, Rusty's blood type matched semen found inside the victim (the book and movie were pre-DNA), and unknown carpet fibers were found in the victim's apartment. 

NOTE, however, that the police in the movie choose not to search for a murder weapon.  In reality, the police will always search for a murder weapon at the home of their primary suspect.  (The reason this is done in the movie is because a twist at the end revolves around discovery of the murder weapon.)

Finally, there are two incidents in the movie where Rusty destroys evidence.  That is obviously a big no-no -- for an attorney or anyone else. 

This is one of the few examples of a movie that gets most of the legal stuff right.  (It would probably be my second choice of an accurate legal film after My Cousin Vinny.)  It is also a compelling story that stands up to the test of time.  The book upon which the movie is based, also called "Presumed Innocent" by Scott Turrow, is excellent as well.  (Click below to check out the movies or book.)

Sign up to receive my free ebook revealing theTop 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
Presumed Innocent Movie Presumed Innocent Book My Cousin Vinny
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Grey's Anatomy Should Stay Out of the Courtroom

12/10/2013

2 Comments

 
A recent Grey's Anatomy episode, "Sorry Seems to Be the Hardest Word" (season 10, episode 9), made it clear that the show should stick to medicine and stay out of the courtroom.  Or at least hire a legal consultant when a storyline turns legal.
Grey's Anatomy: Sorry Seems To be the Hardest Word
In the episode, Calley went to trial in a medical malpractice case.  The mistakes throughout the episode were many and cringeworthy. 

To start with, a period of four months supposedly passed between the time of the act of malpractice (a hip replacement surgery that ended with both legs amputated from an Olympic snowboarded) to the time of trial.  Four months!  Anyone who has had even the slightest interaction with America's court systems knows that nothing moves that quickly.  Least of all a civil lawsuit involving detailed medical information that goes to a jury trial.  Four years would be slightly more realistic.

But, I understand there are more important time needs in the story, so I'll move on.  An even more flagrant problem, and one that had no requirement in teh story, was the confusion between a civil lawsuit, which this was, and a criminal prosecution, which this wasn't.  The writers do not seem to understand something very basic that most Americans should know about their legal system.

There are two completely separate and different legal systems in our country.  Civil cases are where people (or corporations or governments) sue other people (or corporations or governments) for some wrong.  If the person suing (plaintiff) wins, they are usually awarded money.

Criminal cases are where the government (and only the government), whether state, city, or federal, charges someone with a crime.  If the government wins, the defendant might be fined, and/or be sent to jail or prison, or in some cases even be put to death.

The terms used in each of these two systems are often different.  And this is where Grey's Anatomy got so embarrassingly off-track.  After the plaintiff's attorney finished questioning a witness, he exclaimed, "The prosecution rests."  Since this was a civil lawsuit, there was no "prosecution."  There was only a plaintiff. 

SPOILER ALERT  At the end, when the verdict was read, the jury foreperson announced, "Not guilty."  Again, since this was a civil suit, no one could be found guilty or not guilty.  Those terms are only used when someone has been charged with a crime.

There were several more minor errors throughout the show.  Most of these problems could have been easily corrected by having a legal consultant read through the script and/or be present for filming. 

The result of so many basic and easily-fixable errors was that the show looked poorly researched and inauthentic.  If their medical errors are as bad as their legal ones, I have to seriously question this show's credibility.  Not that a medical or legal show has to bee 100% accurate, but such basic mistakes can seriously undermine the show.
Grey's Anatomy: The Complete Ninth Season
To avoid similar mistakes, get your free writer's guide revealing the Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.
2 Comments

"Death In the City of Light" - True Crime Book Review about a Serial Killer in Nazi-Occupied Paris

12/12/2012

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"Death in the City of Light" is a true crime book by David King about a serial killer who murdered dozens of people in Nazi-occupied Paris, France during World War II. 
Death in the City of Light: The Serial Killer of Nazi-Occupied Paris
The crimes committed by the accused serial killer and physician, Dr. Marcel Petiot, were truly horrible.  In addition to being gruesome, his crimes targeted some of the most vulnerable people during World War II - those who wanted to escape the Gestapo. 

Dr. Petiot was seen by those who knew him alternately as a charming humanitarian or a creep.  Dr. Petiot made a reputation for himself by providing free services to the poor.  He was also known to service drug users and was investigated more than once for improperly proscribing medication to addicts.

Petiot effectively used the Nazi occupation of Paris and the French Resistance movement to recruit new victims, prevent too many questions from being asked, and cover his crimes.  Once he is discovered and captured, the central question of his trial becomes whether his murders were committed for the Gestapo, the Resistance, or himself.

The book loses a lot of steam when the trial starts about halfway through.  Normally I'm fascinated by how a foreign country's criminal justice system and trial process compares to the United States, but this one got too bogged down in details.  Also, the author made a point of focusing on the defendant's "witty" remarks in court and the trial audience's delight in him, which was hard to take after learning of all the disgusting things he had done. 

More interesting were some of the procedures used in the French criminal court which were very different from a U.S. criminal trial.  For example, the first part of the trial was basically dedicated to an interrogation of the defendant by the trial judge and lawyers.  By contrast, in the U.S., we have the Fifth Amendment, which protects criminal defendants from ever having to speak in a criminal trial and even prevents the lawyers from commenting on his failure to testify.

Also, several of the victims in the French criminal trial were represented by civil attorneys who actively participated in the trial.  They questioned witnesses and presented evidence.  In the U.S. court system, criminal and civil trials are completely separate.

One of the things I was most struck by was the apparent lack of order in questioning and argument during the French trial.  The defendant and lawyers would speak up, question witnesses, and make arguments seemingly without structure or order.  If this is really the way of a French criminal trial, it is hard to imagine how anything could get accomplished with such a system.  Especially with so many lawyers involved and given lawyers' love of hearing themselves talk!

As far as foreign true crime serial killer books go, I preferred "The Monster of Florence" by Douglas Preston.
The Monster of Florence
Check out my review of "The Monster of Florence" here.

Overall, however, the story underlying "Death in the City of Light" is simply too disturbing and intriguing to ignore. 
Death in the City of Light: The Serial Killer of Nazi-Occupied Paris
(Click the images or links above to check out the books for yourself.)

Also, get your free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.
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A Criminal Law Myth: Never Ask a Question to Which You Do Not Know the Answer

8/28/2012

17 Comments

 
It is common advice given to new lawyers in trial:  Never ask a question you don't know the answer to.  The idea is that you don't want to be surprised by a witness and have someone (intentionally or unintentionally) torpedo your case from the witness stand.

The following legendary story of grandma going to court illustrates this concept in a funny and unexpected way:
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(Unfortunately, this story isn't true.  http://www.snopes.com/legal/grandmacourt.asp.)

Of course, in real life, attorneys are not usually afraid of the witness revealing embarrassing information about them, but are concerned the witness will say something unexpected about the evidence that effectively ruins the attorney's case.  This can happen as a result of lack of proper preparation.  Or, in criminal cases, it can happen because of little or no opportunity to talk to the witness before trial.

A victim or witness is not required to speak to or cooperate with the attorneys on either side of a criminal case.  Unlike in a civil case, there are usually no depositions or interrogatories, or other opportunities to question a witness before trial.  The witness may have been questioned to some degree during a grand jury proceeding or preliminary hearing.  But often a criminal attorney has to rely on statements the victim or witness previously made to police or others. 

That is why, in the field of criminal law, it is a myth to suggest that a lawyer should never ask a question to which she does not know the answer.

For an example of why an attorney should not ask a question without first knowing the answer, check out the Academy Award winning movie "Anatomy of a Murder" with George C. Scott and Jimmy Stewart:
Sign up for your free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
17 Comments

Understanding the Criminal Justice System: 6 Stages to Guide You

3/14/2012

4 Comments

 
When you are in the criminal justice system or you are writing about the criminal justice system, it is helpful to know what stage of the process you are in.  Different things happen at different stages, and you should know where you are at any given time.

I have broken down the criminal justice system into 6 basic stages.  I will give a brief synopsis of each stage here.  I will go into each stage in greater detail in future posts.

1.  Crime Stage - This is where the crime occurs.  Crimes may be instantaneous, like a shooting, or may be ongoing, like a sophisticated ponzi scheme.

2.  Investigation Stage - This can occur simultaneously with an ongoing crime.  In most cases, the investigation phase happens after the crime has been committed.  An arrest usually happens during either the investigation phase or charging stage.

3.  Charging Stage - After an investigation is complete, a prosecutor must decide whether to bring charges, who to charge, and what crimes to charge.  This is an important step because it turns a suspect into a formally charged defendant and triggers certain constitutional rights.

4.  Pre-Trial Stage - Once a defendant is charged, the pre-trial stage begins.  The defense attorney will review the prosecution's evidence and may bring motions, such as a motion to dismiss or a motion to suppress evidence.  Witnesses are interviewed and prepared for trial.

5.  Trial Stage - This is where the fun happens.  Most trials are in front of juries, although a judge can hear trials too.  It's up to the defendant.  The prosecution has the burden of proof and will try to introduce evidence to prove the defendant guilty.  The defense need not introduce any evidence.

6.  Post-Trial Stage - After a defendant has been convicted at trial, there are a slew of things that can happen.  Sentencing happens in every case.  The defendant may also bring a new trial motion.  The defendant can appeal, file a petition for a writ of habeas corpus, or petition for clemency or a pardon.

Each of these phases has its own unique challenges, goals, rules, and rights.  I will develop each in more detail in future posts. 

A fictional crime story may take place in one, some, or all of these stages.  Whichever stages your story takes place in, it's critical to understand the rules and purposes of those stages.  I hope you will find this to be a helpful guide on your journey.

In the meantime, make sure to sign up for the FREE eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
4 Comments

What Is an Adoptive Admission (Hearsay Exception)?

3/1/2012

4 Comments

 
Generally, a defendant's or witness's out of court statements are not admissible to prove their truth in court.  This is the hearsay rule.  There are many exceptions to the hearsay rule, however, including an adoptive admission.

An adoptive admission is generally where the defendant, knowing the content of an accusation against him, adopts the truth of the accusation by his words or conduct.

This often comes up when the police plant someone in a jail cell with or next to the suspect.  The cellmate will ask the suspect questions about the crime.  The suspect may simply agree with the cellmate or may boast about his crimes. 

For example, let's say the defendant makes a statement, "Yeah, man, that guy didn't know who he was messing with."  That statement is admissible by itslef as an admission. But it becomes much more powerful as an adoptive admission when it is coupled with the cellmate's question, "You shot the guy because of the way he looked at you?"

Sometimes a defendant can adopt an accusation by his silence.  If someone is accused of a crime under circumstances where he could hear, understand, and reply to the accusation, and he does not respond, both the accusation and his response (or lack thereof) may be admitted in court.  The prosecutor can argue from this that the defendant admitted the crime.

Similarly, if the defendant responds to an accusation in a way that is evasive or equivocal, that can be admitted in court.

The factors to look for to determine if silence can be admitted as an adoptive admission include:
1.   whether the accusation was made in the defendant's presence;
2.  whether the defendant heard and understood the accusation;
3.  whether, in the circumstances, the defendant naturally would have denied the accusation; and
4.  whether the defendant could deny but didn't.

The idea behind an adoptive admission by silence is that most people, if falsely accused of a crime, would immediately deny it.  When someone does not deny it, that is an indication that the person has a guilty conscience.  A person's own words, or under these circumstances, their lack of words, can be powerful evidence against the defendant.

On an important note, if there is an indication that the defendant's silence was based on him invoking his right to remain silent under the Fifth Amendment, his silence cannot be used against him. 

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Your Character Is Going to Court - Now What?

2/1/2012

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Many writers who are not lawyers may be intimidated by courts and the law.  They may stray from writing stories or scenes that take them into the courtroom. 

I wrote an article with some easy tips to help overcome any fears or doubts about writing legal drama.  Check out What to Do When Your Character Goes to Court.

For more great tips, sign up for your free Writer's Guide:  Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.
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Objection Sustained or Objection Overruled! What Does It Mean?

1/20/2012

48 Comments

 
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I remember before law school watching legal television shows or movies.  When an attorney would object at trial, the judge would rule, either "sustained," or "overruled."  I had to really concentrate and think it through to figure out what the ruling meant.  Now, it's second-nature to me.  

Here's a quick guide for those who aren't in court everyday:
Sustained:  When an objection is sustained, the judge has determined that is a valid objection.  That means the question was improper under the rules of evidence.  The witness may not answer the question.  (If the witness answers anyway, that answer may be "stricken.") 

An easy way to remember this is Sustained = Stop, as in the witness must stop and not answer the lawyer's prior question.

Overruled:  When an objection is overruled, the judge has determined the objection is invalid.  The question may stand.  The witness must then answer the question.

A shorthand way to remember this is Overruled = Ongoing, as in the witness may continue as if the objection never occurred.  Hope this helps!

For more information about some of the differences between the way things happen in fictionalized legal proceedings and in real life, get my free Writer's Guide:  Top 7 Mistakes Made By Writers of Mystery, Crime and Legal Drama.
48 Comments

Penn State Accused Molester Doesn't Have to Pay

11/14/2011

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Jerry Sandusky, the Penn State coach accused of molesting at least eight young boys is getting off scott-free, at least for now.  Sandusky was indicted on November 4, 2011 of 40 counts related to child molestation.  

Sandusky retired from his Penn State coaching job in 1999 and retired from The Second Mile charity last year.  He has been receiving a pension of almost $60,000 per year since 1999.  That will not be affected by his criminal charges.

When Sandusky first appeared in court, the prosecution asked for $500,000 bail and electronic monitoring.  Bail is intended to ensure a criminal defendant appears in court to face the charges.  Generally, the more serious the charges, the higher the bail.  Also, if a defendant has the resources to pay, he will usually be assessed higher bail.  That will ensure he comes to court instead of fleeing.

Sandusky's bail was set at $100,000, unsecured.  He was not required to be electronically monitored.  The bail amount is lower than the prosecution requested, and is quite low considering the crimes he is accused of and his resources.  Even more surprising is the fact that his bail is unsecured. 

Normally when bail is set, the defendant has to put up the amount of the bail for the court to hold.  Or they may give a bail bondsman 10% of the bail amount, and the bail bondsman ensures the court will receive the rest if the defendant does not show up.  If the defendant does not show up in court, he forfeits all the money he posted. 

When bail is unsecured, however, the defendant does not need to front any money.  He basically promises to pay the bail amount if he does not appear.  However, the defendant is already required to appear, so  it does not seem that an unsecured promise to pay would do much more to ensure a defendant's appearance.

The defendant is already required to appear by law, and a judge can issue an arrest warrant if he fails to appear.  An additional promise to pay an unsecured bail amount does not seem like any more of an incentive to appear. 

Sandusky can therefore continue to live at home, go about his daily life, continue receiving his pension, and need not pay a penny in bail as long as he appears.  That is highly unusual for someone accused of such serious crimes.

It is no wonder that people are crying foul now that they have learned that the judge who set Sandusky's bail has donated money to and volunteered for his charity, The Second Mile.  Judges have a duty to recuse themselves from a case if there is even the appearance of an impropriety.  

If Judge Leslie Dutchcot did volunteer for or donate money to The Second Mile charity, she should recuse herself from Sandusky's case.  This is particularly so since Sandusky got access to his victims through The Second Mile charity, according to the indictment.
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    Blythe Leszkay is a successful and experienced criminal attorney, criminal law professor, and consultant to writers and filmmakers.  See About Me.  This blog is intended to answer common criminal law questions, dispel misconceptions, and explain misunderstood criminal law concepts.  It is also a place to discuss any crime or law related topics of interest.  Contact me for a free initial consultation on your film or writing project.

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