Category Archives: Criminal Law

Possession of images of a graphic nature with someone under the age of consent usually means a lawyer is required to help develop and implement a strong defense strategy. Read on to learn more. 

Initial Investigation

When a person faces an accusation of possession of child pornography, this can lead to an investigation into the matter with an expert witness that can analyze the devices and determine if the files are validly searched for or not.

Evidence of Child Pornography

The prosecution will use evidence of the existence of child porn images on the computer or in the house as proof of intention behind the crimes. However, the accused can also use this same evidence as an accident or lacking the intention of searching for or downloading.

Valid Argument 

The defending party will need to provide a legitimate argument against the accusations. A lawyer uses evidence and testimony presented in the courts could sway the judge or jury panel. Often, when the accused was not aware of the files or folders containing child pornography, the case will come out of nowhere.

When there is no legitimate evidence to refute the prosecution’s case, then it is time to consider negotiations for a plea bargain. The lawyer then must enter into these attempting the best possible conclusion to the case.

Increase In Cases

The large influx of possession of child pornography may lead to a set precedence in how to handle simple possession or those with additional crimes such as intent to distribute or creation of these illicit images through photos or video files. The intent is a significant factor in many different crimes. Without the intention to download or access child graphic images, the individual may have a valid defense through a criminal defense lawyer. 

Source: https://www.hg.org/legal-articles/possession-of-child-pornography-charges-how-a-lawyer-can-help-49523

Aggravated assault penalties depend on the degree and any injuries that may have occurred. Aggravated assault charges can be treated as misdemeanors in some states, while other states will treat this charge as a felony. Because penalties for this type of crime depend on both the degree of assault and the state in which the assault was committed, an individual should always talk to a lawyer to determine accurate penalties for his or her case.

What happens after an aggravated assault conviction?

A conviction of an aggravated assault charge can have serious consequences on your life, especially if it is treated as a felony conviction. Many places of employment will not hire convicted felons, and if you already hold a professional license, Also, a felon can also lose basic rights for a number of years, such as the right to vote, serve on a jury, or own a firearm.

In states that have “three-strikes” laws, a felony aggravated assault conviction can also count as a “strike.” This means that if you already have two other felony convictions, or are convicted with other felonies in the same trial, the third strike for aggravated assault can put you in prison for life.

What is the difference between aggravated vs. simple assault?

As opposed to aggravated assault, a simple assault is any willful attempt or threat to inflict injury upon the person of another.. An intentional display of force that would give the other person reason to fear or expect bodily harm constitutes assault. Deadly weapons are weapons that may be used to cause a serious or fatal injury. Deadly weapons include guns and knives, but can also include other instruments that, under normal circumstances, wouldn’t be considered deadly weapons. A simple assault can also rise to the level of an aggravated assault charge depending on the identity of the victim. Generally, the assailant must have known or should have reasonably known, of the victim’s status. Whether the assailant knew or not can be shown by either the uniform, appearance, or the conduct of the victim.

Aggravated Assault Defenses

There are several common defenses that may apply to all levels of assault. Consent, prevention of crime, and official acts are some examples of common aggravated assault defenses. Consent essentially means that the victim consented to the risk of harm. When there is consent, the victim can be prohibited from bringing an action when an assault occurs. Defense of property occurs when the assailant commits an assault to protect their property from an individual. In these cases, courts will generally allow the use of reasonable force to protect one’s own property from theft or damage.

Federal law states possession of a controlled substance with the intent to sell or distribute is broken into two parts:

1. The possession of drugs.
2. The intent to distribute them.

Both aspects have to be shown to have happened at the same time. read on to learn more.

Possession

Possession means drugs are in your control not just on your person. for example, they may be discovered in your car or home. You generally need to know the drugs are there to prove possession. If you did not know the drug was there, you will have a strong defense. Many areas will charge individuals with possession if “they should have known” or should have been aware the substance was a controlled substance. With standards this open, it is more simple for the prosecution.

Intent To Distribute

It has to be proven by the Government what the intention was of the person who had possession of the drugs. Surrounding circumstances become key to proving the intention. The intention to distribute is assumed if the person has more than would be acceptable for personal use. Other signs of the intent to distribute may be, large amounts of cash, customer communications and packing materials.

The Timing

A crime can’t occur unless possession of the drugs occurs at the same time as the intent to distribute them. When someone wants to sell 10 kilograms of heroin but hasn’t received the shipment yet, prosecutors can’t charge him or her with the offense of possession as they never had possession of the drugs. But, related crimes of conspiracy to possess with intent to distribute and attempt to possess with intent to distribute may have been committed and those charges may be stick.

Penalties For The Offense

Federal law says the penalty for possession with the intent to distribute is dependent on the Federal Sentencing Guidelines.  The length of imprisonment and the amount of monetary fines depends on the nature of the controlled substance and whether the defendant has a criminal background. States laws vary a great deal so need to be checked on a state by state basis.

Source: www.findlaw.com/criminal/criminal-charges/possession-with-the-intent-to-distribute.html

A primary role of a police officer is to make arrests. Many even have arrest goals! Often if you are approached by an officer it is likely the officer will have information in assisting them to obtain an arrest. Read on to learn more.

Rules When Speaking With Police Officers

• Issues of consent. You are not obliged to answer questions or agree to a search if you are not suspected of a crime. But if you do consent, the data provided may be used against others (or yourself.) When you agree to a search or to be questioned, remember you may always withdraw your consent and there is no concept of speaking to the police in an unofficial or ‘off the record” manner.
• Failure to produce ID when requested by the Police is illegal in most states and is mandatory when you are pulled over for a traffic stop.
• An officer may question you without reading you your Miranda rights. Therefore, this info may be used against you. Miranda rights only have to be read to a person when they are in custody and are under interrogation.
• You may always delay answering questions when to are not in custody – by asking the officer to return later.
• If you think you may be implicated in a crime, silence may be a very good idea until you have spoken to an attorney. Silence cannot be used against you in court.

Rights At Traffic Stops And Checkpoints

• When a police officer thinks you are guilty of a traffic offense. They may arrest you and even frisk your passengers, especially if the officer suspects they may have a weapon.
• The officer may not perform a search unless they have a “reasonable belief” there is criminal evidence or weapons in the vehicle. The officer cannot use a traffic stop as a reason for a search that is extensive. The officer will need probable cause.
• A police officer may be allowed to search a vehicle without a warrant in the event of an accident.
• At legal checkpoints as long as police follow all the legal procedures they may stop and question drivers for specific purposes.

Your Rights At Home

• When a police officer wants to visit your home to ask questions – you are not obliged to admit the officer or answer questions. You do not have to agree to any searches unless the officer has a search warrant.
• Sometimes you will want to speak with a police officer. When a police officer enters your home and they see any evidence of criminal activity. The material may be seized.
• In an emergency the officer can enter residences. for example, if they are following a suspect who may enter the residence or when an officer hears screams and shouts for assistance.

Source: https://www.criminaldefenselawyer.com/resources/defendants-rights/dealing-with-police.htm

First degree murder is considered by the majority of states as unlawful killing that is willful and premeditated (planned.) Most states also apply what is known as the “felony murder rule,” whereby a person commits murder in the first degree, should  a death (even an accidental death) results from certain felonies like arson, burglary, kidnapping, robbery and rape. Read on to learn more.

Elements Of First Degree Murder

These elements are willfulness, deliberation and premeditation. However federal law and some states also include malice afterthought as an element. The amount of malice differs from state to state. Most states decide based on certain kinds of killings. However, not all states divide murders into degrees. For example, in some states the top level of murder is known as “capital murder.”

Intent

There must be a specified intent to kill with a first degree murder. Even if the eventual victim was not the original intention. Many state laws sat killing with a depraved indifference to human life qualifies as first degree murder.

Deliberation And Premeditation

This can only be decided on an individual case basis. Having time enough to make the decision to kill and then act on it following enough time for a reasonable person to think of the consequences usually is enough. Deliberation and preparation must always happen prior to the killing.

Malice Aforethought

Certain killings are categorized as first degree murder, for example:

• The killing of a child by means of unreasonable force
• Certain killings when in a pattern of domestic abuse
• The murder of a member of law enforcement
• Homicides as part of another crime such as robbery, arson or rape
• Intentional Poisonings
• Murders as a result of being imprisoned
• Murders where the killer waited for and/or ambushed the victim

Source:  https://criminal.findlaw.com/criminal-charges/first-degree-murder-overview.html

Assault charges are common in many urban areas and are often associated with disputes regarding relationships, though assault of a minor, sexual assault and other related assaults also tend to be higher in heavily populated areas. Read on to learn more about getting assault charges dropped.

Assault Versus Battery

Assault is the intentional act causing a person to fear they are about to suffer physical harm. It also recognizes placing another person in fear of imminent bodily harm is itself an act deserving of punishment. This definition also allows police officers to intervene and make an arrest without waiting for the assaulter to physically strike the victim. Battery is when the person who has been physically hurt by another person. Assault is only when there is a fear of harm and it means the person doing the assault has to intentionally make the other person fearful for their safety with the threat of potential harm. 

Filing Charges

These crimes are filed through the governmental criminal case method, ensuring there is not a way to drop the charges. There is no recourse for victims once charges have been filed and a trial has been instituted unless they choose to be of assistance to the opposing counsel. Often victims want the charges to be dropped. This decision is entirely up to the lawyer responsible for the prosecution. They may consider additional evidence and in certain states there is an office with special responsibilities for the examination of such evidence.

Difficulties In Dropping Cases

When victims have additional thoughts regarding going-forward with the prosecution may be concerned for their safety. When the victim decides they do not want to continue, they may decide to reach out to the defending lawyer as quickly as they can so the case of the defense can be bolstered. The testimony of witnesses may be essential for the case and needs to be submitted as a written statement as soon as possible as it may clarify disputed issues. The legal defense party represents the charged individual – so anything the victim may share with this individual may later be used at trial.

Don’t Do This

During an assault, emotions run high. Those who are accused need to be very quiet and controlled so additional complications do not arise with law enforcement. Victims (or those claiming to be) also need to be calm and can help to ensure no violent action occurs. If there is, the case may be further complicated. Also, the prosecution should not be harassed at any time. Everyone needs to be treated with respect.

Source: https://www.hg.org/legal-articles/dropping-assault-charges-39223

Crimes involving intentional harm to another person can be classed as assault, assault and battery and aggravated assault. Depending on the seriousness of the situation this may rise to aggravated assault. even mutually agreed fighting can constitute assault. Read on to learn more.

What Is Assault?

Assault is the intentional act causing a person to fear they are about to suffer physical harm. It also recognizes placing another person in fear of imminent bodily harm is itself an act deserving of punishment. This definition also allows police officers to intervene and make an arrest without waiting for the assaulter to physically strike the victim.

What Is Assault and Battery?

Battery and assault were once considered separate crimes. Many modern statutes do not distinguish between the two crimes. These days, statutes often refer to crimes of actual physical violence as assaults.

Simple Versus Aggravated Assault

Many states say assaults fall into one of two categories, simple or aggravated. The latter is a felony involving an assault with the intent to commit a serious crime or with a weapon. When these factors are not at play, the crime tends to be assault, which is a misdemeanor. There are states recognizing different degrees of harm and classifying them as first, second and third degree assaults.

Source: https://www.nolo.com/legal-encyclopedia/assault-battery-aggravated-assault-33775.html

The penalties and sentences for an assault and/or battery conviction can vary widely depending on the law of the state where the offense was committed. Read on to learn more.

Normally, an assault involves threats of bodily harm. It doesn’t require actual contact, but the person threatened must  believe it is a credible threat.

The crime of battery usually involves intentional and unwanted physical contact, even if the intent wasn’t to actually cause harm.

Most states treat assault and battery as two separate crimes, not all states do. For instance, Texas makes no distinction between the two.

Penalties for an Assault Charge

The seriousness of the threat and associated circumstances will make the assault charge a felony or a misdemeanor. For example, federal law divides assault into a felony punishable by 10 years imprisonment and a misdemeanor punishable by one year imprisonment. Along the same lines, the states divide assault into misdemeanors and felonies. A misdemeanor carries a potential jail term of less than one year. Felonies are subject to imprisonment for more than twelve months.

Penalties for a Battery Charge

Just like assault, battery can be considered a misdemeanor or a felony. The distinction between the two classifications depends on the seriousness of the injury, whether a weapon was used, and the person who was injured. State and federal laws provide for more serious punishments when the victim is a peace officer, fireman, or a member of the legislature, executive or judicial branch of government.

Aggravated Assault/Battery

The potential penalties rise dramatically for aggravated assault because it constitutes a felony in all states. The crime of assault and/or battery becomes an aggravated assault / battery based on whether:

• A deadly weapon was used;
• The status of the victim is a protected class;
• The perpetrator’s intent; or
• The seriousness of the injury.

The type of weapon used makes a difference in the assault and battery penalties that will be assessed. While states like Michigan do not single out particular weapons for different treatment, states like California do as California has specified different punishments for different types of weapons. Similarly, laws may carry harsher penalties for assaults or batteries committed against family members or others living with the offender, or such crimes may be prosecuted under domestic abuse or violence laws.

Aggravated Assault in Arizona

The Aggravated Assault statute in Arizona is long and complex. The punishments can vary from 1.5 years to 25 years in prison, or more in some cases where the circumstances call for it.

Source: https://criminal.findlaw.com/criminal-charges/assault-and-battery-penalties-and-sentencing.html

Assault is a violent crime defined differently by individual states. Read on to learn more.

Physical Assault & Attempted Insult

Some states say assault is the intentional use of force or violence against another. Under this approach, an “attempted assault” is an act that intends to physically harm the victim, but fails or falls short. In other states, assault does not involve actual physical contact, and is defined as an attempt to commit a physical attack, or as threatening actions. In these states, when the attempt succeeds, the resulting crime is a battery. Under this approach, there is no such crime as an “attempted assault.” Verbal threats are usually not enough to constitute an assault. Some action such as raising a fist or moving menacingly toward a victim usually is required.

The Victim’s Fear

Some states define assault as placing a victim in fear of violence. The standard test is if the defendant’s actions would cause a reasonable person to be in fear of an immediate physical attack. 

Simple and Aggravated Assault

Simple assault involves minor injury or a limited threat of violence. Aggravated assault means the crime is more serious, as when the victim is threatened with or experiences more than minimal physical violence’

Deadly Weapon

An aggravated assault means the offender has used a deadly weapon in the commission of the crime. (In some states, assault with a deadly weapon is a separate, distinct crime and not included in the crime of aggravated assault.)

An object is a deadly weapon if it likely can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons. Other objects, such as rocks, bricks, can be considered a deadly weapon, as well.

Proving the Case and Possible Defenses

For a defendant to be convicted of aggravated assault, the prosecutor must prove every element of the crime.

• The prosecutor must prove that the defendant intentionally threatened an attack and caused the victim fear 
• Alternatively, the defendant attempted or accomplished a physical attack. The prosecutor also must prove the facts that make the assault aggravated.
• Alternatively, the victim was a member of a protected class, such as a police officer, school employee or an elderly or other vulnerable person.

Defenses

Defendants can claim they have the wrong person as well as claiming self defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself. That defense may take the form of showing that a weapon actually was in the victim’s possession. It can be argued the defendant’s actions were purely accidental and that he had no criminal intent.

Penalties for Aggravated Assault

Aggravated assault is usually a felony punishable by approximately one to twenty years in prison. Normally, the judge has some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation.

Sentence Enhancement

In some states, assault against a special victim like a police officer or elderly person carries more severe penalties or is subject to sentence enhancement, which permits the court to add extra time to the sentence for the underlying crime. In many states, there also are more severe penalties or sentencing enhancement provisions if the deadly weapon used in an assault or battery is a firearm of certain kinds.

Source

https://www.criminaldefenselawyer.com/crime-penalties/federal/Aggravated-Assault.htm