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How to Defend a Criminal Case* - Part I

A fundamental question that frequently arises is how should one approach the defense of a criminal case? This article is an overview of the steps necessary to defend a criminal case. First, and I cannot possibly overemphasize the importance of this issue, most cases cannot be competently defended by a non-lawyer. Of course, you should utilize a criminal defense lawyer of some experience. There is a real reason that we went to law school for 3 years and spent varying degrees of time (25+ years for me) honing our craft.

A criminal case begins with either an arrest and/or being served with a summons of some kind and a charging document, whether a citation, complaint, Information or Indictment. The citation and the complaint are the most common forms of charging documents because they are made by police as a result of citizen-police encounters, whether at traffic stops or other circumstances. An Information is a charging document prepared and issued by a prosecutor. An Indictment is a charging document prepared by a prosecutor, but voted upon and endorsed by a Grand Jury.

So, what should one do after being released from police custody and/or just receiving the summons and charging document? Read the charging document and determine the elements of the offenses charged. Every criminal offense is made up of individual elements, each of which, the government must prove beyond a reasonable doubt. The elements of an offense are available from several sources. The best starting point to determine those elements would be the statutes, ordinances, agency regulations or other provisions of law that you are charged with violating. A review of the provision of law claimed to be violated should reveal those elements. For instance, California Pen C § 484(a) defines the offense of theft as

Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person or money; labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person obtains credit and thereby fraudulently gets or obtains possession of money or property or obtains the labor or serve of another, is guilty of theft.

Confusing, isn't it? A plain reading doesn't quite work here. Depending upon a particular theory of a case (based upon its facts), the complete elements of that theft case could vary. If a person doesn't take some type of transportation, e.g. car or bicycle, then the thief could not drive it away, could he or she? Likewise, if someone doesn't defraud a person out of labor or misrepresent wealth, those elements do not apply. However, to illustrate the exercise of analyzing which elements apply, let's take the simple situation of a person that takes a briefcase from another person that the victim put down and was not watching. The elements of theft for that case (really, no pun intended) would be the following: (1) Person; (2) feloniously; (3) steals, takes, or carries; and (4) personal property of another. There are just four elements; that's it. You can also search online for commentary about those elements to see if you may be interpreting those correctly. Of course, only a thorough review of all legal authorities, e.g. case authority from appellate courts in the state, will determine whether each element is being interpreted as its plain meaning may appear to provide or not. So, in order to determine what the government needs to prove to meet each element, you must first indentify each element and then determine the facts in the case available to the prosecution.

You must determine the facts available to the prosecution in order to analyze, not only whether the government can prove each element of the offense, but what legal defenses may be available to the accused. The facts of your case, especially those that are known or will be known by the prosecution, are available from several sources, and it is imperative that you follow-up with each such source, so as to have as complete a picture as possible to defend the case. At our next publication, we will discuss the sources of those facts and how best to gather them.

*The information provided herein is a general guideline, does not constitute legal advice and should not be followed without first consulting a lawyer. The reason simply is that the approach to a criminal case necessarily must vary depending upon the facts of a specific case. For instance, there could be emergency action that must be taken in lieu of or before other steps outlined here that would be beyond the scope of this article and, again, vary from case-to-case.