Criminal Defense
Unlike civil law, which involves private law suits between two or private entities; Criminal Defense Law involves prosecution by the state or federal government of a person or business for an act that has been classified as a crime. Any act or omission of an act in violation of a public law forbidding or commanding it is considered a “crime.” With the exception of strict liability crimes, most crimes consist of three elements: an act (actus reus), a mental state (mens rea) and the intent to do social harm. Crimes are classified as “misdemeanors” (less serious offenses that are normally punishable by a fine like some traffic violations, petty theft, or possession of a small amount of marijuana) and “felonies” (more serious offenses that warrant imprisonment of one or more years, such as rape, grand theft, assault and battery, assault with a deadly weapon, or homicide/murder).
In Criminal Defense Law, the suit is initiated by the state or federal government through a prosecutor rather than being initiated by the victim, as it is in civil law. Plaintiffs in a civil law suit only need to show by a preponderance of the evidence that a defendant is 51% or more liable (responsible) for the damages. But, the prosecutor in a criminal defense law case has to prove to the judge or jury “beyond the shadow of a doubt” that the defendant is guilty of the crime charged.
If you’re arrested… You may be entitled to a court appointed attorney at public expense if you qualify as an indigent person. An indigent person is one who cannot hire an attorney without causing substantial hardship to himself/herself or dependent family. If you have been charged with a crime, you may complete an Affidavit of Indigence and Request for Court Appointed Counsel at your first court appearance. If you qualify, an attorney will be appointed for you. If you are convicted of a crime, the court may require you to repay some or all of the cost of your defense if it determines you are able.
Harper Law Firm has over 35 years experience defending individuals accused of many felony and misdemeanor crimes ranging from first degree murder to minor traffic violations in many Colorado Courts. These cases are handled from initial law enforcement contact, police interrogation, bail bond matters, preliminary and pre-trial proceedings, plea bargaining, motion hearings, jury trials and appeals. Approximately 50% of our practice is devoted to criminal defense matters, so Harper Law Firm has extensive experience in the defense of criminal cases. Please contact us for a free evaluation of your criminal case by one of our experienced criminal defense attorneys. Harper Law Firm regularly defends clients accused of all types of crimes in many Colorado courts.
If you are accused of a crime, know that you can count on us to fight for the best result in your case.
The following is a list of examples of our practice areas related to Criminal Defense. Please contact us if you have any questions about our legal services.
Examples of Our Criminal Defense Practice Areas
- Accounting Fraud
- Aiding/Abetting
- Arson
- Bank Fraud
- Carjacking
- Credit Card Fraud
- Domestic Violence
- DUI, DWAI and Traffic Defense
- Drug Crimes
- Environmental Crimes
- Fraud
- Import/Export Crimes
- Investment Fraud
- Murder, Homicide
- Obstruction of Justice
- Perjury
- Robbery
- Sale & Distribution of Guns
- Seal & Expunge Criminal Records
- Sex Offenses
- Tax Fraud
- Theft
- Traffic Offenses
- Trafficking
- White Collar Crimes
The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and may establish punishments. In contrast, Criminal Procedure describes the process through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which government enforces this substantive law through the gathering of evidence and prosecution is generally considered a procedural matter.
Crimes are usually categorized as felonies or misdemeanors based on their nature and the maximum punishment that can be imposed. A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes with varying degrees of punishment. Crimes that do not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison. Lesser offenses, such as traffic and parking infractions, are often called violations and are considered a part of criminal law.
The power to make certain conduct illegal is granted to Congress by virtue of the Necessary and Proper Clause of the Constitution (art. I, 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.
State legislatures have the exclusive and inherent power to pass a law prohibiting and punishing any act, provided that the law does not contravene the provisions of the U.S. or state constitution. When classifying conduct as criminal, state legislatures must ensure that the classification bears some reasonable relation to the welfare and safety of society. Municipalities may make designated behavior illegal insofar as the power to do so has been delegated to them by the state legislature.
Laws passed by Congress or a state must define crimes with certainty. A citizen and the courts must have a clear understanding of a criminal law’s requirements and prohibitions. The elements of a criminal law must be stated explicitly, and the statute must embody some reasonably discoverable standards of guilt. If the language of a statute does not plainly show what the legislature intended to prohibit and punish, the statute may be declared void for vagueness.
In deciding whether a statute is sufficiently certain and plain, the court must evaluate it from the standpoint of a person of ordinary intelligence who might be subject to its terms. A statute that fails to give such a person fair notice that the particular conduct is forbidden is indefinite and therefore void. Courts will not hold a person criminally responsible for conduct that could not reasonably be understood to be illegal. However, mere difficulty in understanding the meaning of the words used, or the Ambiguity of certain language, will not nullify a statute for vagueness.
A criminal statute does not lapse by failure of authorities to prosecute violations of it. If a statute is expressly repealed by the legislature, but some of its provisions are at the same time re-enacted, the re-enacted provisions continue in force without interruption. If a penal statute is repealed without a saving clause, which would provide that the statute continues in effect for crimes that were committed prior to its repeal, violations committed prior to its repeal cannot be prosecuted or punished after its repeal.
The same principles govern pending criminal proceedings. The punishment that is provided under a repealed statute without a saving clause cannot be enforced, nor can the proceeding be prosecuted further, even if the accused pleads guilty. A court cannot inflict punishment under a statute that no longer exists. If a relevant statute is repealed while an appeal of a conviction is pending, the conviction must be set aside if there is no saving clause. However, once a final judgment of conviction is handed down on appeal, a subsequent repeal of the statute upon which the conviction is based does not require reversal of the judgment.
Generally, two elements are required in order to find a person guilty of a crime: an overt criminal act and criminal intent. The requirement of an Overt Act is fulfilled when the defendant purposely, knowingly, or recklessly does something prohibited by law. An act is purposeful when a person holds a conscious objective to engage in certain conduct or to cause a particular result. To act knowingly means to do so voluntarily and deliberately, and not owing to mistake or some other innocent reason. An act is reckless when a person knows of an unjustifiable risk and consciously disregards it.
An omission, or failure to act, may constitute a criminal act if there is a duty to act. For example, a parent has a duty to protect his or her child from harm. A parent’s failure to take reasonable steps to protect a child could result in criminal charges if the omission were considered to be at least reckless.
Ordinarily, a person cannot be convicted of a crime unless he or she is aware of all the facts that make his or her conduct criminal. However, if a person fails to be aware of a substantial and unjustifiable risk, an act or omission involving that risk may constitute negligent conduct that leads to criminal charges. Negligence gives rise to criminal charges only if the defendant took a very unreasonable risk by acting or failing to act.
Intent
Criminal intent must be formed before the act, and it must unite with the act. It need not exist for any given length of time before the act; the intent and the act can be as instantaneous as simultaneous or successive thoughts.
A jury may be permitted to infer criminal intent from facts that would lead a reasonable person to believe that it existed. For example, the intent to commit Burglary may be inferred from the accused’s possession of tools for picking locks.
Criminal intent may also be presumed from the commission of the act. That is, the prosecution may rely on the presumption that a person intends the Natural and Probable Consequences of his or her voluntary acts. For example, the intent to commit murder may be demonstrated by the particular voluntary movement that caused the death, such as the pointing and shooting of a firearm. A defendant may rebut this presumption by introducing evidence showing a lack of criminal intent. In the preceding example, if the murder defendant reasonably believed that the firearm was actually a toy, evidence showing that belief might rebut the presumption that death was intended.
Proof of general criminal intent is required for the conviction of most crimes. The intent element is usually fulfilled if the defendant was generally aware that he or she was very likely committing a crime. This means that the prosecution need not prove that the defendant was aware of all of the elements constituting the crime. For example, in a prosecution for the possession of more than a certain amount of a controlled substance, it is not necessary to prove that the defendant knew the precise quantity. Other examples of general-intent crimes are Battery, rape, Kidnapping, and False Imprisonment.
Some crimes require a Specific Intent. Where specific intent is an element of a crime, it must be proved by the prosecution as an independent fact. For example, Robbery is the taking of property from another’s presence by force or threat of force. The intent element is fulfilled only by evidence showing that the defendant specifically intended to steal the property. Unlike general intent, specific intent may not be inferred from the commission of the unlawful act. Examples of specific-intent crimes are solicitation, attempt, conspiracy, first-degree premeditated murder, assault, Larceny, robbery, burglary, forgery, false pretense, and Embezzlement.
Most criminal laws require that the specified crime be committed with knowledge of the act’s criminality and with criminal intent. However, some statutes make an act criminal regardless of intent. When a statute is silent as to intent, knowledge of criminality and criminal intent need not be proved. Such statutes are called Strict Liability laws. Examples are laws forbidding the sale of alcohol to minors, and Statutory Rape laws.
The doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to Homicide, battery, and Arson.
Felony-murder statutes evince a special brand of transferred intent. Under a felony-murder statute, any death caused in the commission of, or in an attempt to commit, a predicate felony is murder. It is not necessary to prove that the defendant intended to kill the victim. For example, a death resulting from arson will give rise to a murder charge even though the defendant intentionally set the structure on fire without intending to kill a human being. Furthermore, the underlying crime need not have been the direct cause of the death. In the arson example, the victim need not die of burns; a fatal heart attack will trigger a charge of felony murder. In most jurisdictions, a death resulting from the perpetration of certain felonies will constitute first-degree murder. Such felonies usually include arson, robbery, burglary, rape, and kidnapping.
Malice
Malice is a state of mind that compels a person to deliberately cause unjustifiable injury to another person. At Common Law, murder was the unlawful killing of one human being by another with malice aforethought, or a predetermination to kill without legal justification or excuse. Most jurisdictions have omitted malice from statutes, in favor of less-nebulous terms to describe intent, such as purpose and knowing.
Massachusetts, for example, has retained malice as an element in criminal prosecutions. Under the General Laws of the Commonwealth of Massachusetts, Chapter 265, Section 1, malice is an essential element of first- and second-degree murder. According to the Supreme Judicial Court of Massachusetts malice is a mental state that “includes any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow” (Commonwealth v. Huot, 403 N.E.2d 411 [1980]).
Motives
Motives are the causes or reasons that induce a person to form the intent to commit a crime. They are not the same as intent. Rather, they explains why the person acted to violate the law. For example, knowledge that one will receive insurance funds upon the death of another may be a motive for murder, and sudden financial difficulty may be motive for embezzlement or burglary.
Proof of a motive is not required for the conviction of a crime. The existence of a motive is immaterial to the matter of guilt when that guilt is clearly established. However, when guilt is not clearly established, the presence of a motive might help to establish it. If a prosecution is based entirely on Circumstantial Evidence, the presence of a motive might be persuasive in establishing guilt; likewise, the absence of a motive might support a finding of innocence.
Defenses
Defenses Negating Criminal Capacity To be held responsible for a crime, a person must understand the nature and consequences of his or her unlawful conduct. Under certain circumstances, a person who commits a crime lacks the legal capacity to be held responsible for the act.
Examples of legal incapacity are infancy, incompetence, and intoxication.
Children are not criminally responsible for their actions until they are old enough to understand the difference between right and wrong and the nature of their actions.
Children under the age of seven are conclusively presumed to lack the capacity to commit a crime. Between the ages of seven and 14, children are presumed to be incapable of committing a crime. However, this presumption is not conclusive; it can be rebutted by the prosecution through the admission of evidence that the child knew that what he or she was doing was wrong. Anyone over the age of 14 is presumed to be capable of committing a crime, but this presumption can be rebutted by proof of either mental or physical incapacity.
Criminal Defense: Overview of the Law and the Process
Related Articles
Criminal defense is a pillar of the American legal justice system. An individual’s right to defend his or her self in a court of law when charged with a criminal offence harkens to the 5th Amendment to the Constitution of the United States of America as well as the writ of habeas corpus. Below we will discuss the various elements and procedural that makes up the basics of a criminal defense law and a criminal defense case.
Stages of a Criminal Case
Every criminal case has multiple stages required by due process. While some stages in criminal cases last longer than others, provisions in both state and federal statutes guarantee when a person is accused of a crime, he or she will have to go through the following stages of a criminal case.
- Arrest. The first stage of any criminal case is the arrest. Typically, a police officer will arrest an individual suspected of or seen committing a crime and take him into custody.
- Booking & Bail. After a person is taken into custody, he or she will be processed, fingerprinted, and placed in a holding cell until he or she makes bail and is released.
- Arraignment. In this stage, the defendant appears in court to be read the criminal charges compiled against him. After hearing the charges, he or she must enter a plea of guilty, not guilty, or no contest.
- Plea Bargain. During this stage of a criminal case, a defendant may plead a certain way in exchange for a lesser or reduced sentence with the approval of the judge.
- Preliminary Hearing. This stage is basically a series of hearings held to determine whether there is enough evidence to proceed with a trial and what specific evidence will be admitted in trail. Not every case has preliminary hearings and jumps straight to pre-trial motions or the trial itself.
- Pre-Trial Motions. This stage resolves issues that the prosecution and defense may have that were not brought up in the preliminary hearings.
- Trial. During the trial stage of a criminal case, the plaintiff must provide ample evidence to either a judge or a jury that the defendant committed the crime he is accused of. There are multiple stages of a trial including the choosing of a jury, opening statements by both parties, testimony by witnesses, cross-examination, closing arguments by parties, jury deliberation, and verdict.
- Sentencing. When a person is found guilty in the trial phase, he will then be sentenced in proportion to the crime committed.
- Appeals. After the trial and sentencing stages are completed, a person may file a petition for appeal. This petition sets into course a review of the trial, sometimes in light of new evidence, and may result in a reduced sentence or a reversal of verdict.
Criminal Law
Criminal Law is the codes, statutes, and rules that defines and prohibits certain conduct prohibited by the regional, state, and federal government. Pretty much, criminal law, also known as penal law, is the basis by which a person’s behavior is either deemed in accordance with behavior and actions that are commonly justified and acceptable and behavior that is prohibited, unjustified, and illegal in the eyes of the American people. When a person acts in violation of criminal law, then that person is taken into police custody and charged with the violation.
Criminal violations can range from relatively minor misdemeanor theft violations to severe felonious homicide charges. There are state and federal statutes and laws categorizing the severity of punishment for every type of violation depending on the jurisdiction where the specific crime took place and the type of crime committed. Punishments for crimes reflect the severity of the criminal violation.
There are three basic types of criminal charges: infractions (also known as petty offences), misdemeanors, and felonies. Infractions are crimes that do not warrant any jail time punishment. Categorized as a subgroup of misdemeanor, infractions are often punishable by fines and community service. Examples of infractions include traffic violations, jaywalking, and disturbing the peace.
Misdemeanors are considered lesser crimes sometimes punishable by relatively short prison sentences not to exceed one year, moderate fines, community service, and probation time. Typical misdemeanor offences include simple assault, theft, prostitution, vandalism, and public intoxication.
Felonies are the most severe type of crime a person can commit. More cruel or harsh in intent and execution, typical felony crimes are punishable by more than one year in prison and hefty fines along with community service hours and probation years. Common felony crimes include grand theft, fraud, rape, and murder. Felonies are also the only charge by which the death penalty may be a consequence.
Criminal Defense
When a person is charged with a crime, that person has the right to defend himself and avail himself with the best legal representation available. Criminal defense lawyers represent ordinary people charged with violating the law. There are a handful of common criminal defenses often used by criminal defense lawyers. The most common criminal defenses are discussed below.
The Insanity Defense involves the perpetrator of a crime as being mentally deficient when he or she committed the crime. The basis of an insanity defense is that the individual was not of sane mind when committing the alleged crime and unable to comprehend the consequences of his/her actions; therefore, he/she should not be held criminally liable for the crimes committed during this time. Defendants who attempt the insanity defense must often undergo a series of mental examinations and evaluations before a judge will allow this type of defense to be practiced.
Another common criminal defense is the Intoxication Defense. When a person violates the law while in an altered state of consciousness, he or she may attempt this defense. The intoxication defense argues that since the individual was intoxicated on a toxic substance, he/she should not be fully responsible for the actions committed while under the spell of the substance. This defense may negate intent in several states and diminish responsibility for the violation.
Self-Defense is one of the most popular types of defense strategies used in murder and assault cases. This criminal defense involves the act of protecting one’s self or family from harm. Self-defense is only a valid defense when the consequence of the alleged violation is proportionate to the defensive force or act. Self-defense actions are usually not deemed criminal acts at all.
The Harper Law Firm has over 35 years experience defending individuals accused of many crimes ranging from first degree murder to minor traffic violations in many state and local Colorado Courts. These cases are handled from initial law enforcement contacts, police interrogation, bail bond matters, preliminary and pre-trial proceedings, motion hearings, plea-bargaining, jury trials and appeals. Approximately 50% of our practice is devoted to criminal defense matters, so Harper Law Firm has extensive experience in the defense of criminal cases in Colorado. Please contact us for a free evaluation of your criminal case by one of our experienced criminal defense attorneys.
If you are accused of a crime, know that you can count on us to fight for the very best result in your criminal case.
Felony
A felony is a serious crime in the United States and previously other common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person’s land and goods; other crimes were called misdemeanors. Most common law countries have now abolished the felony/misdemeanor distinction and/or replaced it with other distinctions such as between summary offences and indictable offences.
In the United States, where the felony/misdemeanor distinction is still widely applied, the Federal government defines a felony as a crime which involves a potential punishment of a year or longer in prison.
Crimes commonly considered to be felonies include, but are not limited to: aggravated assault and/or battery, arson, burglary, illegal drug abuse/sales, embezzlement, grand theft, tax evasion, treason, espionage, racketeering, robbery, murder, rape, kidnapping and fraud.
Some offenses, though similar in nature, may be felonies or misdemeanors depending on the circumstances. For example, the illegal manufacture, distribution or possession of controlled substances may be a felony, although possession of small amounts may be only a misdemeanor. Possession of a deadly weapon may be generally legal, but carrying the same weapon into a restricted area such as a school may be viewed as a serious offense, regardless of whether or not there is intent to use the weapon.
“The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories.” Gonzales v. Duenas-Alvarez, 549 U.S. __ (2007) (citations omitted).
In some states, felonies are also classified (class 1,2,3,4,5 and 6 in Colorado) according to their seriousness. In New York State, the classes of felonies are E, D, C, B, A-II, and A-I (the most severe). The number of classifications and the corresponding crimes vary by state and are determined by the legislature. Usually, the legislature also determines the maximum punishment allowable for each felony class; this avoids the necessity of defining specific sentences for every possible crime. Colorado has sentencing guidelines for this purpose.
A felony may be punishable with imprisonment for one or more years or death in the case of the most serious felonies, such as murder, treason, and espionage; indeed, at common law when the British and American legal systems divorced in 1776, felonies were crimes for which the punishment was either death or forfeiture of property. In modern times, felons can receive punishments which range in severity; from probation, to imprisonment, to execution for premeditated murder or other serious crimes. In the United States felons often face additional consequences, such as the loss of voting rights in many states; exclusion from certain lines of work and difficulty in finding a job in others; prohibition from obtaining certain licenses; exclusion from purchase and possession of firearms, ammunition and body armour; and ineligibility to run for or be elected to public office. These, among other losses of privileges not included explicitly in sentencing, are known as collateral consequences of criminal charges. Finally if a felon is not a U.S. citizen, that person may be subject to deportation after sentencing is complete.
Harper Law Firm has over 35 years experience defending clients accused of felony charges in all Colorado courts. These are serious criminal cases that require a higher level of knowledge and expertise to defend properly than misdemeanor cases. Harper Law Firm has defended clients accused of felony charges ranging from first degree murder, sex offenses, drug crimes, theft, assault, and nearly all felony offenses in Colorado.
Misdemeanor
A misdemeanor, is a “lesser” criminal act. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions (also known as regulatory offenses). Many misdemeanors are punished with monetary fines. Usually only repeat misdemeanor offenders are punished by actual jail time.
In the United States, the federal government generally considers a crime punishable by a year or less in prison to be a misdemeanor. All other crimes are felonies. Many states also follow this.
Misdemeanors usually do not result in the loss of civil rights, but may result in loss of privileges, such as professional licenses, public offices, or public employment. Such effects are known as the collateral consequences of criminal charges. This is more common when the misdemeanor is related to the privilege in question (such as the loss of a taxi driver’s license after a conviction for reckless driving), or when the misdemeanor involves moral turpitude and in general is evaluated on a case-by-case basis. One prominent example of this is found in the United States Constitution, which provides that the President may be impeached by Congress for “high crimes and misdemeanors” and removed from office accordingly. The definition of a “high” misdemeanor is left to the judgment of Congress.
Within classes of offenses, the form of punishment can vary widely. For example, the US federal government and many U.S. states divide misdemeanors into several classes, with certain classes punishable by jail time and others carrying only a fine.
Harper Law Firm regularly defends clients accused of misdemeanor offenses in Colorado courts.
