Criminal Law Consulting
​For Writers & Filmmakers
  • Home
  • About
  • Services
  • Resources
  • Blog
  • Contact
  • Free eBook

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

2/27/2015

6 Comments

 
Picture
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. 

6 Comments

The Movie "Double Jeopardy" Gets Its Named Concept Completely Wrong

3/12/2014

4 Comments

 
The movie thriller, "Double Jeopardy" gets the concept of double jeopardy completely wrong.  Here, I'll explain the basics of double jeopardy under the law and how the movie got it wrong.
Double Jeopardy

The Law of Double Jeopardy

The legal concept of double jeopardy comes from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, which states:
Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.
The Double Jeopardy Clause prevents a criminal defendant from being tried more than once by the same sovereign for the same offense.

First, double jeopardy only applies if the defendant was either convicted (found guilty) or acquitted (found not guilty) after the first trial.

Second, it must be the same sovereign that is trying the defendant both times.  Each government entity is a separate sovereign.  The federal government is separate from the states, and each state is a separate sovereign from the others.  Also a Native American tribal government is separate from the federal government and states.

A true crime example of this was shown during the trials of the LAPD Officers who were accused of beating Rodney King.  The four officers were initially charged by the state of California (through the Los Angeles County District Attorney's Office).  They were acquitted of the charges in state court.  The acquittals sparked the L.A. Riots.  The federal government then charged the four officers with civil rights violations based on the same incident.  This was not precluded by the Double Jeopardy Clause because the California and the federal government are two separate sovereigns.

The third requirement of double jeopardy is that the crimes charged in the first and second trials must be for the same offenses.  This is determined by the same elements test.  The elements of the crimes charged in the first and second cases are compared.  If there is an element that must be proven in each crime that is different from the other, than the crimes are not considered the same, and double jeopardy does not apply.

Double Jeopardy the Movie

*SPOILER ALERT
In the movie "Double Jeopardy," a married couple spend a weekend sailing.  The wife, Libby (Ashley Judd), wakes up to find blood all over herself and the boat.  Her husband, Nick, is missing.  She arrested when the coast guard spots her holding a bloody knife, which she found on the deck.

Libby is convicted of Nick's murder.  Her best friend agrees to care for her four-year-old son while Libby is in prison.  While on the phone with her son, Libby hears a door open in the background, and her son yells, "Daddy."  The phone disconnects.

Libby suspects Nick faked his death and framed her for murder.  Another inmate advises Libby that when she was paroled, she could kill Nick with impunity because she had already been convicted of his murder, and the Double Jeopardy Clause would prevent her from being charged again.  Libby does just that.  (Tommy Lee Jones plays Libby's parole officer who at first investigates her violations of parole, then helps her once he realizes her story may be true.)

Lesson number one:  Never take legal advice from a fellow prison inmate - or a movie - without first checking with a lawyer.

Libby's fellow inmate, and this movie, get the concept of double jeopardy wrong.  If someone is wrongly convicted of murder, they do not then have free license to kill that person if the person is found alive.  

Although both charged crimes are for the murder of Nick, they are two separate incidents.  The dates, facts, and evidence supporting each charge would be completely different.  Therefore, the charges are not for the same offense.  

Also, in the movie, the first framed murder occurred in Washington state.  The second murder occurred in Louisiana.  Therefore, double jeopardy would not bar the second prosecution because the two states are not the same sovereign. 

Because she was falsely convicted the first time, she could probably sue and recover some money to compensate her for her time in prison, but she would not be able to use that first conviction as a defense for her the second (valid) charges.

Check out the movie by clicking below:
Double Jeopardy
If you are a writer, get a free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.  For your first free consultation on your project, contact me.
4 Comments

Ineffective Assistance Of Counsel - How A Criminal Defendant Can Prove It

5/14/2013

3 Comments

 
OJ Simpson has claimed that his attorney for his Las Vegas robbery trial was ineffective. He has asserted two bases for his claim: 1) conflict of interest, and 2) failure to tell him about a plea offer.  This raises the question of what a criminal defendant must show for a claim of ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to the effective assistance of counsel. 
"In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense."

-U.S. Constitution, Amendment VI
That doesn't mean a defendant has the right to a perfect attorney or even a really good attorney.  It simply means a defendant has the right to an attorney who doesn't mess up in a way that is considered outside the professional norm.  Even then, the mess-up has to be so bad that it changes the outcome of the case.

Unlike a trial where the prosecution has the burden of proof to show a defendant is guilty, here it is the defendant's burden to prove that his attorney was ineffective. This is usually done through a petition for writ of habeas corpus. The defendant has to prove two things.

First, he must prove that his attorney acted outside the bounds of what is acceptable for a criminal defense attorney. This must be something more than a disagreement about tactics. It has to be something big. There are cases where even a drunk or sleeping attorney has not been held constitutionally ineffective.

Second, the defendant must prove that the attorney's mistake changed the outcome of the case. "If it wasn't for the mistake, I would have been acquitted." This is called prejudice.

Was OJ Denied the Right to the Effective Assistance of Counsel?

In OJ Simpson's case, he claims his attorney had a conflict of interest because he advised OJ that taking his memorabilia back was legal. A conflict of interest usually exists when an attorney has divided loyalties. Even if OJ's claim is true, it is unclear how that would have divided the attorney's loyalties. It is also unclear how that would have changed the outcome of the case. OJ would have to show his attorney's conflict caused him to be convicted when he would not have otherwise.

OJ's other claim is that his attorney did not tell him about a plea offer. a criminal defense attorney has a duty to communicate any plea offers to his client. The problem with this claim is that OJ would have to prove that he would have accepted the plea offer if he had known about it. Without that showing, there is no prejudice. No harm, no foul.  This is highly unlikely here. I suspect there is nothing that would have gotten OJ to plead guilty in this case.

It is generally very difficult for a criminal defendant to show that her attorney has been constitutionally ineffective. It does not appear that OJ will be able to make that showing.

Sign up for my free eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.
3 Comments

What Is an Alibi Defense?

9/10/2012

1 Comment

 
A common question that is asked is what is an alibi defense?  An alibi defense is a classic example of a type of defense called failure of proof defenses.

The easy explanation of an alibi defense is that the defendant claims he was somewhere else when the crime occurred.  To assert this defense in court, the defendant must generally bring forward some proof - a receipt, time-stamped photos, credit card charges, or a witness who saw the defendant.  The stronger the evidence that supports the alibi, the more likely such a defense will be successful.

Once the defendant has asserted an alibi defense and put on some evidence of it, the burden shifts back to the prosecution to prove the defendant was the person who committed the crime and was in the place where the crime was committed. 

Of course, it is the prosecution's burden of proof to begin with to prove beyond a reasonable doubt that the defendant was the person who committed the crime.  However, if the defendant puts on some alibi evidence and the prosecution is unable to rebut it, the defendant may be entitled to an acquittal (a finding of not guilty).

There is of course a big difference between the defendant's mom or wife testifying that he was with her the entire night (the most common alibi evidence), and a security camera capturing the defendant's image miles from the crime scene at the time the crime took place.

I once had a case where the defendant's wife had a long explanation about how she knew the defendant was with her the night of the robbery because they had signed loan documents that night, which were dated.  However, it later turned out the robbery occurred the night after the loan documents were signed.  The wife still testified her husband was with her that night, but after the passage of over a year, she was unable to bring forward any more specific proof.  He was convicted of the robbery.

Get a free eBook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama. 

Also, get a free printable and portable Miranda Card, detailing the Miranda rights as read by the police.
1 Comment

Does an Undercover Police Officer Have to Answer When Asked, "Are You a Cop?"

8/30/2012

1 Comment

 
This is an almost daily scene in television and movies:  An undercover police officer begins discussing an illegal transaction with a known criminal.  The criminal asks, "Are you a cop?"  Of course, the police officer says he is not.  The criminal is satisfied, and they conduct their illegal transaction.

In real life, if an undercover police officer is asked whether he or she is a cop, do they have to tell the truth?  The short answer is no. 

Police officers are allowed to lie to suspected criminals.  The police officer who lies and says he is not a cop will not get in trouble, and any evidence he collects as part of the undercover operation can be used in court.

I have sometimes been asked, isn't it entrapment when a police officer lies and says he is not a cop?  Again, the answer is no. 

Entrapment generally occurs when a police officer (or other government agent) induces the defendant to commit a crime he would not have otherwise committed.  Simply providing someone the opportunity to commit a crime is not entrapment.  Certainly telling someone that he or she is not a cop would not induce someone to commit a crime they would not have otherwise committed.

So, why do television shows and movies always do this?  I don't have a good answer for that.  Maybe it's an easy way to show the criminal is suspicious of the undercover cop.  Maybe it's laziness or ignorance on the part of the writers.  One thing is for sure:  it is overused and suggests an incorrect legal standard.

For more information like this, check out a free ebook revealing the Top 7 Mistakes Made by Writer of Crime, Mystery, and Legal Drama.
1 Comment

When Is a Defendant Considered Legally Insane?

5/17/2012

1 Comment

 
What is required to prove a criminal defendant is legally insane?  Each state has its own laws and rules about its legal definition of insanity, but there are some general concepts that can be used to understand what it means to be legally insane.  It is important to note that the insanity defense is rarely used and has even been abolished in some states.

Insanity is generally considered an "excuse" to committing a crime.  An excuse defense is where, even though the defendant engaged in criminal conduct, he is excused from legal responsibility because of some condition in the defendant.  

Insanity is also considered to be an "affirmative defense."  An affirmative defense is one in which the defendant must affirmatively assert the defense and produce some evidence supporting it.  For some affirmative defenses in some states, the defendant also has the burden of proving the defense is true.  

Defendants are generally presumed to be sane, so a prosecutor does not need to prove the defendant was sane unless the defendant puts his sanity into question.  Once it is put into question, either the prosecution must prove the defendant was sane beyond a reasonable doubt or the defendant must prove he was insane by a preponderance of the evidence.

In some states the defendant must enter a special plea, such as not guilty by reason of insanity. Some states have a separate sanity phase where the jury determines the defendant's sanity after it has decided he committed the charged crime.

The focus of determining a defendant's sanity is his mental condition at the time of the crime.  (This is one way the test for insanity is different than the test for competence to stand trial.  For a discussion of the differences between sanity and competency, check out this prior post.)

To be found insane, the defendant must show that he suffered from a mental disease or defect at the time he committed the crime.  Generally, the mental disease or defect may be permanent or temporary.

The M'Naghten Test

The defendant's mental condition must satisfy the legal standard for insanity.  The M'Naghten test is traditionally the most commonly used  test to determine insanity.  Under the M'Naghten test, a person is considered legally insane if: 

1.  at the time of the crime
2.  he suffered from a defect of reason that resulted in him either
     a.  not knowing the nature and quality of the act he performed, or
     b.  not knowing his act was wrong.

A defendant knows the nature of his act if he knows what act he is performing.  He knows the quality of his act if he understands the consequences that flow from his act.

For example, a woman is charged with murdering her baby by drowning.  To prove she was legally insane, she must prove that because of a defect of reason, she either did not know she was holding her baby's head underwater, or did not know that holding the baby's head underwater would result in him drowning.

Alternately, the defendant can show she did not know that her act was wrong.  The term "wrong" in this context may mean either legally wrong or morally wrong, depending on the state.

In the above example, if the woman knew she was holding her baby's head underwater and understood this would cause the baby to drown, but she believed she must do so to rid him of the devil, she would assert that she did not know her act was wrong.  This would be an example of a moral wrong.

Insane Delusions

If someone suffers from delusions because of a defect of reason, they may be able to assert the insanity defense, depending on the nature of the delusion.  If the delusion was to a fact that, if true, would have justified the defendant's acts, he could assert the insanity defense.  If, however, the delusion was to a fact that, if true, would not have justified the defendant's acts, he may not be considered insane.

For example, the defendant was delusional and believed the victim was holding a gun when in fact e was holding a pen.  The victim pointed the pen at the defendant, who believed he was about to be shot.  The defendant pulled out a gun and shot the victim.  The defendant could assert the insanity defense because, had the victim really pointed a gun at him, he would have been justified in shooting the victim in self-defense.

However, if the defendant's delusion was that the victim tricked him out of his money, and he shot the victim in revenge, he would not be considered legally insane because, even if his belief was true, tricking someone out of their money does not justify shooting them.

Irresistible Impulse Test

The irresistible impulse test is sometimes used in conjunction with the M'Naghten test.  Under this test, the defendant must have a defect of the mind that makes it impossible for him to control his actions.

It is not sufficient to meet this test if someone is overcome by anger, jealousy, or other strong emotions.  (Such passion may be sufficient to reduce a killing from murder to voluntary manslaughter, but it cannot be a complete defense.)

Model Penal Code Test

Another test for insanity is set out by the Model Penal Code.  Under this test a person is considered insane if, because of a mental disease or defect, the person did not have the capacity to:
1.  understand the criminality or wrongfulness of his conduct, or 
2.  to conform his conduct to the law.

This is sometimes called the "policeman at the elbow test."  In other words, if the person would have committed the act even if there had been a police officer at her elbow watching her, she is considered unable to have understood the wrongfulness of her conduct or to conform her conduct to the law.

A defendant's sanity may be proven by either medical professionals or by lay (non-expert) witnesses.  Lay witnesses may testify about the defendant's behavior around the time of the crime to help the jury determine whether the defendant was sane or insane at the time of the crime.

To understand the differences between insanity and competency to stand trial, click here.

Claim your free E-book on The Top 7 Mistakes Made by Writers of Crime, Mystery, and Legal Drama.
1 Comment

Acts That Will NOT Reduce a Murder to Heat of Passion Voluntary Manslaughter

2/9/2012

0 Comments

 
I have previously discussed the general requirements to reduce an intentional killing from murder to voluntary manslaughter under a heat of passion theory. 

Yesterday, I set out  several examples of acts that may constitute sufficient provocation by the victim to justify a voluntary manslaughter conviction in lieu of murder.

To recap, a murder may be reduced to voluntary manslaughter under a heat of passion theory where:  1) the victim provoked the defendant, 2) the provocation caused the defendant to act rashly and under the influence of intense emotion, obscuring his judgment and reasoning, and 3) the provocation would have caused the average person to act rashly.

Some examples of acts by the victim that generally DO NOT constitute sufficient provocation (so the defendant will be on the hook for murder) include:

1.  A simple or slight assault.
2.  A simple trespass.  (However, a trespass combined with a physical attack or physical resistance to an eviction may suffice.)
3.  A victim's refusal to engage in sex.
4.  Molestation of a stranger.  In other words, where the defendant kills someone he believes sexually molested a child who was not related to or emotionally close to the defendant, the molestation is not sufficient provocation, and the defendant must be convicted of murder.
5.  Mere words or gestures, unless accompanied by something more.

 For more in-depth information about the differences between murder and voluntary manslaughter, check out this article.

For more information like this delivered to your email, along with my special offers, giveaways, and promotions, join the Criminal Law Community (I respect your privacy and will not give or sell your information to anyone).
0 Comments

Acts Sufficient to Reduce Murder to Voluntary Manslaughter under a Heat of Passion Theory

2/8/2012

2 Comments

 
When someone kills another in the heat of passion, the murder may be reduced to voluntary manslaughter. 

The elements, or requirements, necessary to find heat of passion voluntary manslaughter are:  1) the victim provoked the defendant, 2) the provocation caused the defendant to act rashly and under the influence of intense emotion, obscuring his judgment and reasoning, and 3) the provocation would have caused the average person to act rashly.

Not everything a victim does can be sufficiently provocative that it will support a voluntary manslaughter conviction (as opposed to murder).  Acts that may constitute adequate provocation (depending on the circumstances) include:

1.  A violent physical attack by the victim.
2.  Mutual combat or a fight between the defendant and victim, as long as the defendant did not start the fight.
3.  The victim's murder of a member of the defendant's family.
4.  A spouse's adultery.

Check out this post for examples of acts that will not justify reduction of murder to voluntary manslaughter.

For more in-depth information about the differences between murder and voluntary manslaughter, check out this article.

For more information like this delivered to your email, along with my special offers, giveaways, and promotions, join the Criminal Law Community (I respect your privacy and will not give or sell your information to anyone).
2 Comments

If Someone Is Forced to Commit a Crime, Can They Still Be Convicted?

1/31/2012

19 Comments

 
Question from a reader:  If person A threatens person B with the loss of B's job if B does not cut the brake line of C's car, who can be held liable for the crime?

The short answer is that, if B actually cuts the brake line, both A and B can be convicted.  That would at least be a vandalism charge, and possibly attempted murder, depending on the specific circumstances. 

B would be liable as the direct perpetrator, since he did the criminal act of cutting the brake line.  A would be liable as an aider and abettor or an accesory because he got B to do it.  (Although we usually think of an accessory as being less culpable than the direct perpetrator, that is not necessarily so, as this example demonstrates.)

That leads to the question, if B was basically forced to commit the crime, why would he still be criminally liable? 

There are only limited circumstances where the law allows someone to "get away with" committing a crime.  Generally, if someone is being threatened or forced to commit a crime, they would be expected to report it to the police.  That's true even if reporting the crime would have dire consequences, such as the loss of a job.   

There are some defenses where a person is basically forgiven for committing a crime.  However, the crime must be committed to prevent something worse from happening, and it must be the only real option.  Self-defense  or defense of others would be such a defense.

There are also the defenses of duress and necessity.  These defenses have strict requirements, and generally only permit someone to commit a crime if the crime would help prevent some bigger wrong, and if there was no other reasonable alternative. 

For example, if someone has planted a bomb and threatens to blow up a school if you do not rob a bank, and you have no way to notify authorities or get away, you would probably not be liable for the bank robbery. 

Being threatened with losting one's job would not qualify under any defense.

Note that in teh scenario above, A did not commit blackmail or extortion by threatening B's job to force B commit a crime like cutting a brake line.  Extortion involves threatening someone to force them to give you money or property (or to get a public officer to perform an official act).

For more answers to your questions delivered to your inbox, join the Criminal Law Community!
19 Comments

Competency versus Insanity

9/29/2011

14 Comments

 
Yesterday, a judge considered the competency of the man charged in the Arizona January shooting rampage that killed six and injured Congresswoman Gabriel Giffords.  Although Jared Loughner has been charged in the case, he cannot go to trial until he has been declared competent to do so.  There was some indication that, once competent to stand trial, he may claim he is not guilty by reason of insanity.

This begs the question:  what is the difference between competency to stand trial and the insanity defense?  There are three basic differences:

The first difference is the timeframe considered.  Determining someone’s competency to stand trial is concerned with their mental state at the time of legal proceedings and trial.  Whether a person can be found not guilty by reason of insanity is determined by looking at the person’s mental state at the time the crime was committed.  So, competency is concerned with today, whereas insanity is concerned with a distinct point in the past.

The second difference is the standard.  Competency is determined by whether the defendant can understand the nature and consequences of the criminal proceedings against him and whether he can assist in his defense. 

The insanity defense varies greatly from state to state.  Federal courts use the M'Naghten test to determine if someone is legally insane.  The M'Naghten test generally asks whether the defendant, because of a defect of reason, either did not understand the nature and quality of his acts or did not know that his acts were wrong.  (Check out this post for more about the insanity defense and the M'Naghten test.)

The third difference is procedural.  Competency is determined by the judge, and must be considered before a trial can take place.  If found incompetent, the defendant is treated in a mental facility and is periodically evaluated to determine whether he has gained competence. 

Insanity is determined by the jury (assuming the defendant has a jury trial).  It is a complete defense to the crime charged.  The idea is that if a person was insane at the time the crime was committed, he or she is excused from responsibility for the crime, and must be found not guilty.  However, being found not guilty by reason of insanity does not mean he goes free.  Generally, the person found legally insane can be locked up in a mental facility until doctors determine he or she is safe to return to society.


For more on the insanity defense, check out this post.
14 Comments
    Get your FREE E-Book revealing The Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama:
    Send My Free E-Book!

    Author

    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.

    Categories

    All
    Appeals
    Burden Of Proof
    Celebrity Crime
    Common Questions
    Constitution
    Consulting Services
    Courtroom
    Crime In The News
    Crime Novels
    Crime Tv
    Death Penalty
    Defenses
    Evidence
    Extortion
    Hate Crimes
    International Crime
    Juvenile Crime
    Legal Comedy
    Legal Definitions
    Legal Drama
    Manslaughter
    Movies
    Murder
    Search And Seizure
    Serial Killers
    Sex Crimes
    Supreme Court
    Trial
    True Crime
    Writing Tips

    RSS Feed

      Get Email Updates

    Join!
    Loading
Powered by Create your own unique website with customizable templates.