July 27, 2022 | Criminal Defense
On TV, it seems that all criminal charges lead to full-blown trials. In real life, however, the process often works quite differently. Criminal law is incredibly complicated, and there are many ways you could obtain a dismissal of criminal charges against you.
Enter into a Diversion Program
Diversion programs are designed to keep people out of jail or prison for at least two reasons:
- Jails and prisons are already overcrowded; and
- Incarceration, especially prison, sometimes turns first-time offenders into hardened criminals.
In a diversion program, the defendant and the court sign a pretrial diversion agreement, which includes several conditions the defendant must meet. If the defendant successfully completes them, their charges will be dropped.
The record of the criminal charge (but not a conviction) will remain unless the defendant has it expunged later. The diversion option is not available to every criminal defendant. First-time offenders have the best chance.
The Exclusionary Rule
The exclusionary rule is a rule of evidence imposed by the US Supreme Court. You have several rights under the US Constitution that make it more difficult for the police to gather evidence against you. These rights include your 4th Amendment right against unreasonable search and seizure, for example, and your 5th Amendment right against compelled self-incrimination.
Under the exclusionary rule, any evidence that was gathered in violation of your constitutional rights cannot be used against you. This principle includes the “fruit of the poisonous tree” doctrine, which excludes any further evidence against you that was indirectly obtained through illegally obtained evidence. Your lawyer can ask the judge to exclude this evidence. If the judge does so, it might leave the prosecution with no viable case against you.
Exclusion of Witnesses
In this strategy, you ask the court to subpoena a hostile witness to participate in a deposition (the pretrial giving of testimony outside of court, perhaps at your lawyer’s office). If the witness lives far away or is reluctant to testify, they might not appear at the deposition. If this happens enough times, the court might exclude the witness from the trial. This might leave the prosecution with no viable case against you.
To say that a defense to a criminal charge is “affirmative” means that the burden of proof is reversed. Normally, the prosecution bears the burden of proving the defendant guilty. The defendant, however, is responsible for proving an affirmative defense to a criminal charge. Not all defenses to criminal charges are affirmative.
Following are some of the most commonly used affirmative defenses::
- Defense of others;
- Entrapment (the police enticed you into committing the crime so that they could arrest you for it);
- Duress: For example, someone threatens to kill or maim you if you don’t commit a crime. This defense only works under certain circumstances. It doesn’t apply to homicide, for example.
- Necessity: You had to commit the crime, or something worse would have happened. Suppose, for example, that you deliberately swerved into the side of a moving car to avoid running over a child who had run into the street chasing a basketball.
- Insanity: This defense is seldom used because if you are successful the court will commit you to a mental institution instead of incarcerating you in jail or prison.
Not all defenses are affirmative. Lack of intent, for example, is not an affirmative defense. The prosecution must prove your criminal intent beyond a reasonable doubt.
It is plea bargaining, not courtroom drama, that resolves most criminal defense cases. In plea bargaining, you typically agree to plead guilty to some or perhaps even all of the charges against you (meaning there is no trial). In response, the prosecutor agrees to certain concessions that will result in a more lenient sentence (recommending that the judge impose a more lenient sentence, for example).
The advantage of plea bargaining to the prosecution is that it reduces the number of cases they have to take to trial. Any signs that a criminal case is weak will increase your bargaining leverage.
A Criminal Defense Attorney Can Make a World of Difference
Most criminal defense attorneys offer free initial consultations. The better you prepare for your initial consultation, the better you will enable your lawyer to estimate your chances and give you advice on how to proceed. A good criminal defense lawyer will know all the “tricks of the trade” that can result in a more lenient sentence or even an outright acquittal.
Contact the Lexington Criminal Defense Attorneys at Suhre & Associates, LLC For Help Today
Suhre & Associates, LLC – Lexington
333 West Vine Street #300-19
Lexington, KY 40507