Category Archives: Criminal Law

Aggravated assault is the attempt to cause what is termed serious bodily harm to another person with disregard for human life. The factors that can play into this include the status of the victim, the use of a weapon, the intent of the crime and the extent of injuries caused. Read on to learn more.

States classify certain assaults as aggravated as per their own state criminal codes. Other terms they may use, for example, may be “assault with  deadly weapon.” These are often considered felonies, while simple assaults are often considered to be misdemeanors. There are also multiple degrees of criminal charges for assault in many states.

Deadly Weapons

The use of a deadly weapon constitutes an aggravated assault regardless of whether the weapon harmed anyone. Physical harm is not always an ingredient of basic assault, but rather the perpetrator behaved in a way (for example threatening them) to make the victim fear for their safety. However, that threat can often make the assault be elevated to an aggravated assault charge because the fear factor is more harmful than a physical injury. Weapons may include guns as well as the way the yare used. A pocket knife may only be considered a lethal weapon if it used in way that can threaten the life of an individual.

Victim Identity

Depending on the status of the victim, some assaults may become aggravated, for example, those visited upon essential services personnel. This is especially so when the victim was performing their duty and the perpetrator was aware of the victims role.

Degree Of Injury

Serious injuries can cause an assault charges to be raised to that of an aggravated charge – usually injuries that will disfigure or maim the victim – though some states list certain injuries. Even if the injuries end up as minor, some states will say certain injuries fall under the aggravated assault statues. Sexual assaults are usually classed as their own form of assault but charges may include battery/assault, aggravated rape or assault an sexual assault.

Source: https://criminal.findlaw.com/criminal-charges/aggravated-assault.html

Being proactive is the key to reducing your prisoner sentence. Read on to learn more.

There are two phases of the criminal justice system, the trial and the sentencing. When someone is correctly convicted of charges against them, it is during the sentence process you can advocate for a less severe penalty. Known in most states as a “motion for modification of sentence” your attorney will file this document and the judge will set a hearing for you to make your case. The judge may require the prosecutor to sign of on a reduced sentence. it is paramount the motion is filed before your sentence is finalized.

Reduced Sentence?

Here are some thing that may assist in your case for a reduced sentence (note this is not an option in all states):

• Showing cooperation as a witness for the prosecutors by testifying against others
• Compassionate release if the convicted person is of great age or very poor health

What If The Law Or Facts Of My Case Change?

Many states are changing charge and sentencing procedures for small amounts of certain narcotics. If your new sentence is very different from your previous ones, you may petition to have it altered to reflect new guidelines. There is also the chance new evidence will exonerate or alter the way you were initially charged.

Was My Sentence Illegal?

This is not often the case. Sometimes the conviction may be valid and the sentence can be invalid – perhaps it is in excess of the criminal code. Another example would be if the procedures for plea bargaining have not been correctly observed or (and this is very rare) the court does not have jurisdiction.

Changing The Sentence

More often than not it is up to the discretion of the judge. That said, if you can demonstrate good behavior while you are incarcerated will help your situation as it will show you are not a threat to the community. Work with an attorney to get he best possible outcome for your case.

Source: https://www.legalmatch.com/law-library/article/how-to-reduce-your-criminal-sentence.html

Only a small number of cases ever go to trial. Often, plea cases are accepted whereby a defendant pleads guilty in return for a lesser offense. It is important trials follow rules that protect the rights of the defendant while maintaining the efficiency of the court system. Read on to learn more.

Voir Dare

Voir dare is the process of interviewing potential jurors. Both the defense and prosecution may question potential jurors for conflicts of interest or biases. A certain amount of “preemptory challenges” can be utilized to remove a potential juror without giving a reason though they are not allowed to discriminate on the grounds of gender, race, or ethnicity.

Opening Statements

Once in place, the jury will hear each side who want to offer an opening statement, intended as a summary of the case.

Prosecution Evidence and Witnesses

The state will first present their case. They have the burden of proof to meet all the elements of the alleged offenses. They may call witnesses and introduce other evidence to aid them in doing so.

Defense Evidence And Witnesses

The defendant can present evidence as well as witnesses as a rebuttal to the case made by the state. There is no obligation to testify and they cannot be called as a witness by the prosecution as the fifth amendment affords the privilege against self-incrimination. As prosecutors carry the burden of proof, the defendant does not have to prove their innocence. However, they may have a burden of proof, for example, if they use self-defense insanity or entrapment as a reason for their actions.

Closing Arguments

Each side can present closing arguments once the presentation of evidence has been completed. These arguments summarize their cases and can highlight flaws in the reasoning or evidence of the opponent.

Jury Charge

The judge will give instructions to the jury that may include questions regarding the charged offense. Both the defendant and the state can submit proposed jury charges to the court.

Jury Deliberations and Verdict

The jury will then retire for deliberation. On occasion, jurors may be sequestered but they are normally told not to discuss the case. If a unanimous verdict cannot be obtained, the judge may declare a mistrial.

Post-Trial Motions

When a guilty verdict has been entered by a jury, post-trial motions can be brought by the defendant such as an acquittal or motion for judgment or a new trial. The defendant may appeal if the post-trial motions are denied by the court.

Source: https://www.justia.com/criminal/procedure/stages-criminal-trial/

Felony murder is a term expanding the way murder is defined. Applied when an individual commits a type of felony and someone else dies during the course of the crime. Whether accidental or intentional, the defendant is liable for the death. Often it applies to felonies that are a danger to human life, like rape, robbery, burglary and arson. Read on to learn more.

Felony murder requires the intent to commit the underlying felony and that an individual died from the acts of the felony. if more than one person is involved in the felony, all take responsibility, including accessories.

Broad Reach

The terms of felony murder differ by state but are generally very broad by definition. it applies when:

• A bystander for law enforcement are the cause of death
• The death occurs during an escape attempt or the person who dies is an accomplice
• As intent is not an element at play, self-defense may not be permissible when dealing with cases of felony murder

These rules have frequently been criticized as punitive to those who did not take a life. for example, the driver of a getaway car where another occupant committed the murder.

Capital Punishment

The original position of the US Supreme Court was the Eight Amendment expressly prohibits capital punishment, if the defendant did not kill, or attempt to kill, and was only a minor league player but was available should there defendant have been a major participant in the crime and acted with: “reckless indifference to human life.” (Tison v. Arizona, 481 U.S. 137 (1987).) Not all states subscribe to this viewpoint and it may not be worthy of the death penalty: (See, for example, Vernon Kills On Top v. State, 279 Mont. 384 (1996).)

Federal Law

Federal law sees felony murder as first degree murder and lists felonies forming the basis for prosecution:

• arson
• burglary
• child abuse
• escape
• espionage
• kidnapping
• murder
• sabotage
• sexual abuse
• treason

State Law

Some states no longer have felony murder on their books. Some states consider it to be first degree murder, in others it is second degree murder. There are many factors determining how states apply felony murder rules.

Predicate Felonies

States can make a determination what qualifies as predicate felonies. Many states say even attempts can bring the felony murder rule into play. Some states say all the facts surrounding the crime are relevant, while others look at the felony, without considering the outstanding surrounding facts.

Time Of Death

Some states limit felony murder when death occurs as part of the underlying felony.

Accomplices

Every state has individual rules they apply to accomplices. Most states use an “agency” approach whereby felony murder will only apply when the defendant or their “agent” has responsibility for the death. Some states adopt a “proximate cause” approach, whereby, felony murder can be applied when any death occurs from the felony, regardless of who caused it.

Causation

Every estate says the underlying felony be the “but for” cause of death. For example, someone may die as a result of a robbery but some states also require the felony to be the immediate and primary cause of death.

Source: https://www.criminaldefenselawyer.com/resources/felony-murder.htm

A felony is normally considered to be a crime with a a penalty of more than one year in prison. Often crimes with violence or that are debasing to society are included such as arson and murder in the first degree. Lesser crimes are usually citations or misdemeanors. Read on to learn more.

Differences

Felony crimes are taken more seriously and have more severe penalties than misdemeanors. A misdemeanor may result in fines and a prison term of less than a year. But a felony may result in a prison term in excess of twelve months and far greater terms. There are also wobblers…a crime that may be either and a combination of fines and prison time may apply.

Felony Classes

Every state has their own statute for felony crimes classes. Many states say a Class 1 or Class A felony will be reserved for the most severe of cases. They then proceed to Class B or Class 2 and so on in a similar manner as the crimes lessen in their severity and punishment.

Felony Charges

Here is a list of common felony charges:

• Property crimes: Grand theft, arson, and vandalism.
• Drug offenses: Distributing, selling, or trafficking drugs.
• Sex crimes: Sexual assault and human trafficking.
• Violent offenses: First-degree murder, second-degree murder, and robbery.
• White collar crimes: Embezzlement, securities fraud, and tax evasion.

Felony Sentencing Structures

A felony sentence is likely to be harsher if the offender already has a record and harmed another person while committing their crime. A successful defense can reduce a sentence. The state as well as the kind of crime also is taken into account. When there are no factors considered aggravating it may be argued the sentence should be similar to a misdemeanor. There may also be a civil lawsuit to contend with. That said, if it can be demonstrated the defendant was acting in self defense, then the civil penalties may be stropped or at the very least, reduced.

Felony Expungement

It is very tough to get a felony expunged, especially if the crime was a serious nature. It may be possible if the defendant was a child when the crime was committed depending on time factors and the nature of the crime as well as the completion of any court ordered programs. The difference between being arrested and charged for a felony means the suspect when arrested is there based on the belief they have committed a felony. A felony charge means a legal proceeding has been initiated against the individual. Usually a felony remains with a person forever. This may make it tough to find employment, obtain rights of custody over children as well as losing the right to vote.

Facing Felony Charges

You will want to think about hiring an experienced criminal defense attorney. They can understand state laws in reference to your situation and work to get the best possible outcome for your case.

Source: www.legalmatch.com/law-library/article/what-is-a-felony.html

All states divide felonies into categories. Some states like South Dakota, Colorado, Virginia and Arizona have at least six different felony classes ranging in seriousness from Class 1 to Class 6. Examples of class 6 felonies nationwide would include:

• Possession of up to 2 ounces of methamphetamines – Colorado
• Receipt of a stolen firearm – Virginia
• Internet gambling – South Dakota
• Recklessly handling a dangerous weapon – Arizona
• Sale of child pornography – South Dakota
• Maximum and Minimum Sentences

Read on to learn more.

A class 6 felony presumptive sentence will be similar to the minimum felony sentence – one year of prison time up to five years in some states. Fines, in the form of restitution or as additions to the prison term range from $2,500 all the way up to $100,000.

Extended Sentences

Any felony may be enhanced if there are aggravating factors at play. This will include Class 6 felonies. Any violent crime in Colorado is penalized by an enhanced sentence. In Arizona, if you have a history of two or greater prior felonies, there is a minimum sentence of three years. You can qualify for alternative or diversion sentencing options when the crime did not have a component of violence and the offender has no felony criminal history. Also in Arizona, a judge may decide to sentence a Class 6 felony as a class 1 misdemeanor. An attorney may be able to assist in minimizing or even avoiding prison time with a case dismissal possible when a diversion program or community sentencing has been successfully completed.

Loss Of Rights

Once convicted of a Class 6 felony you normally lose the following rights:

• Vote
• Qualify to run for public office
• Own or possess a firearm
• Receive permits or licenses needed for various occupations, including lawyer, accountant and many healthcare positions

Drug related crimes can also impact the ability of a person qualify for low-income housing options as well as food stamps.

Employment And Housing

A 2010 study showed 92 percent of all employers check for criminal records. A felony will make obtaining a position far more difficult and you will face similar problems obtaining housing. State labor agencies may be able to assists with lists of companies and individuals who are incentivized to hire felons or choose them as tenants.

Cleaning Your Record

Although in Arizona and South Dakota you may have your civil rights automatically restored, a felony conviction will still be a negative factor on your records. Many states have expungement laws but it is not often felony convictions are expunged. A criminal attorney can negotiate a Class 6 felony to a misdemeanor. Another way is to request a pardon from the Governor. This usually takes at least three to five years and will need a compelling reason to do so.

Source: https://www.superpages.com/em/class-6-felony