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Criminal Defense and Family Law. Located at the Chase Park Plaza.
314-454-1200
314-454-1200

Criminal Law Newsletter

POSSESSION OF CONTROLLED SUBSTANCES
Controlled substances are drugs, which are used for the diagnosis, cure, treatment, or prevention of disease in humans and animals and which must be obtained under a valid prescription from a licensed practitioner. Possession of controlled substances without a valid prescription is a criminal offense. More...
SEXUAL EXPLOITATION OF CHILDREN
The crime of sexual exploitation of children is a highly prosecuted crime especially in the past decade. There are actually sub-categories with respect to the underlying offense of sexual exploitation of children. More...
CLEMENCY FOR DOMESTIC VIOLENCE VICTIMS
In some states, legislatures have recently enacted laws that grant the possibility of clemency by the states' governors for domestic violence victims who have been convicted of certain offenses, such as murder and manslaughter. In those states, the governors are entitled to request a clemency investigation by the states' parole boards into cases where defendants have pleaded guilty or have been convicted of those offenses when the offenses were directly related to the defendants' being victimized by domestic violence. More...
RIGHT TO APPEAL
A defendant has a right to appeal his or her final judgment of conviction and sentence by a trial court to a state's appellate court. In order to be considered a defendant for purposes of an appeal, the defendant must have been charged with a crime or the defendant must have committed a criminal offense. More...
WITNESS TAMPERING
A person commits the offense of witness tampering if he or she offers, confers, or agrees to confer any benefit on a witness or a prospective witness in a judicial or an administrative proceeding. More...
ARTICLES
A defendant's claim of error in a trial court can only be reviewed by an appellate court if the defendant properly presented or preserved the error in the trial court. The appellate court cannot review the error if the error was not properly presented to the trial court either before, during, or immediately after a trial.
In reviewing a trial court's errors, an appellate court looks at a trial court's record of the proceedings. Attorneys for both a defendant and the prosecution have a duty to ensure that the trial court's proceedings are properly recorded and transcribed by a court reporter. If any proceeding is not being recorded, the attorneys should immediately object and should attempt to establish an adequate record in order to preserve the error.
In order to preserve an error for appellate review, a defendant must make a timely objection to the error during his or her trial. If the defendant fails to make a timely objection, the error will be deemed to have been waived. In the defendant is objecting to evidence that will be admitted, the defendant should object prior to the admission of the evidence. If the evidence has already been admitted, the defendant should object and should file a motion to strike the evidence. In addition, the defendant's objection must be specific and should state the defendant's grounds for the objection.
A trial court's granting of a motion in limine does not preserve an error for purposes of an appeal. A motion in limine is a motion that seeks to exclude prejudicial evidence either before or during a trial. In order to preserve error with regard to evidence that has been the subject of a motion in limine, a defendant must object to the evidence when it is introduced at the trial.
A defendant's claim of error in an appeal must be consistent with the defendant's objection during his or her trial. If the claim of error is not consistent, an appellate court may refuse to address the merits of the defendant's claim.
A defendant must object to inadmissible evidence every time it is offered during his or her trial. Any error regarding the admission of such evidence will be cured if the same evidence is subsequently admitted without objection. In order to avoid such a situation, the defendant may choose to obtain a running objection to the evidence. In other words, each time the evidence is introduced, the defendant is deemed to object to the evidence. However, a running objection must be specific and cannot be too broad. Otherwise, it may not be effective in order to preserve error with regard to the evidence.
In addition to making a timely and a specific objection during a trial, a defendant must obtain an adverse ruling from a trial court on the objection. The trial court must respond to the objection or to the defendant's motion. If the trial court fails to do so, the defendant must insist on a response or a ruling. If the trial court refuses to respond or to make the ruling, the defendant must file an objection.
If a defendant files an objection at trial and a trial court sustains the defendant's objection, any error with regard to the admission of evidence that is the subject of the objection is not preserved. The defendant must request that the jury be instructed to disregard the evidence and he or she must request a mistrial.
If evidence is admitted over a defendant's objection, the nature of the evidence will be part of a trial court's record, which record can be reviewed by an appellate court. However, if evidence is excluded despite the defendant's objection, the error cannot be evaluated by the appellate court because the excluded evidence is not part of the record. In order to preserve the error, the defendant should make an offer of proof with regard to the evidence or should file a bill of exceptions. A bill of exceptions may also be used to preserve error with regard to proceedings that have not been recorded by a court reporter.
In addition to general requirements for preservation of error, there are some specific requirements for certain types of errors. For example, a defendant who claims an error in an indictment or an information must raise the error prior to trial or the error is deemed to have been waived. Such an error is usually raised by filing a motion to quash the indictment or the information prior to trial. Jury selection is another example. In order to preserve error with regard to a trial court's denial of the defendant's challenge of a juror for cause, the defendant must make a specific challenge for cause, must use a peremptory strike for the juror, must exhaust his or her peremptory strikes, must identify the juror, and must claim that he or she would have used a peremptory strike if it had been available.
Preserving an error for purposes of an appeal is extremely important. If a defendant fails to properly preserve the error, the defendant's appeal may not be successful. Although an appellate court has jurisdiction to review plain or fundamental errors that are not raised during the defendant's trial, it is to the defendant's advantage to preserve the error at the time of his or her trial rather to risk losing his or her appeal.
If an accused has been arrested or is awaiting a trial on criminal charges he may wish to hire a defense attorney. There are numerous defense attorneys that an accused may have to choose from. There are various places to find a defense attorney. Some of the places that an accused may find a defense attorney include:
  • The court. The court may have a list of potential defense attorneys.
  • Recommendation from family and friends.
  • The local phone book.
  • Contact the State Bar Association.
  • Consult the Martindale-Hubbell publication for your state. This publication lists various attorneys in your state and area in which you reside.
  • If the accused is indigent, he may request the appointment of a public defender to represent him.
What to Ask the Defense Attorney
Once the accused has found the name of an attorney, he should meet with the attorney. There are numerous questions that the accused should ask the attorney. Examples of some questions include:
  • What type of law does the attorney primarily practice?
  • How long has the attorney been in practice?
  • How much criminal experience does the attorney possess?
  • How much does the attorney charge?
  • How long does the attorney anticipate that the proceedings will take?
  • What are the potential consequences involved with the offense charged?
Once the Attorney is Retained
Once the accused has retained an attorney to represent him in his criminal proceedings, the attorney will file an appearance with the court. From that point on, any communications should be through the accused's attorney. The prosecution should not directly contact the accused for questioning or to present a plea bargain. Any communications between the attorney and the accused are considered confidential and cannot be used against the accused.
An overhearing is when an individual believes that another has illegally overheard their communication. When a defendant believes that he has been illegally overheard, he may file a motion alleging that an unlawful act of electronic surveillance has been conducted. The defendant may request the disclosure of the electronic communication. The federal government may request that the trial court require the defendant to provide specific information regarding the disclosure of the electronic surveillance. The defendant may be required to provide the following information:
  • biographical information
  • specific time and place that the illegal surveillance occurred
  • any other relevant information with respect to the disclosure of the electronic communication
Attorney Overhearings
Overhearings of the defendant's counsel or staff may involve a violation of the Sixth Amendment to the United States Constitution. The defendant's Sixth Amendment right is not implicated unless the conversation or information overheard directly related to or was relevant to the attorney's representation of the defendant. If an illegal overhearing has occurred, the federal government is required to inform the trial court of the overhearing. Further, the federal government is precluded from using that information in the defendant's criminal trial.
If the attorney makes an assertion that an overhearing has occurred, the attorney may be required to produce and submit an affidavit to the trial court regarding the overhearing. The affidavit should include the following information:
  • specific time and date of the incident
  • identity of the person that the attorney was conversing with at the time the electronic surveillance was conducted
  • facts showing a nexus between the electronic surveillance conducted and the attorney claiming that the violation occurred
After the attorney has filed the affidavit, the federal government must either affirm or deny the allegations. It is within the trial court's discretion to accept or reject the attorney's contentions set forth in his affidavit. The trial court may also conduct a hearing with respect to the allegations and may take testimony regarding the alleged illegal overhearing.
A person commits the offense of bigamy when he or she is legally married and when he or she marries or purports to marry another person, who is not his or her spouse. A person also commits the offense of bigamy when he or she is not legally married and when he or she marries or purports to marry another person who is legally married. In states where common law marriage is recognized, a person commits the offense of bigamy if he or she is legally married and cohabits with another person under the appearance of being married, which means that the parties hold themselves out as being married.
In order to convict a defendant of bigamy, the prosecution must prove the existence of a prior marriage and the fact that a prior spouse was alive at the time of the bigamous marriage. The prosecution must also prove that the prior marriage was not annulled or dissolved as a result of a divorce. The prior marriage may be proved by a valid marriage license or by the testimony of the prior spouse. A defendant who is charged with the offense of bigamy may defend the offense on the grounds that he or she reasonably believed that his or her prior marriage was void or was dissolved by death, divorce, or annulment. However, the defendant must prove that he or she made a good faith effort to determine whether the prior marriage was void or was dissolved by death, divorce, or annulment. Prosecution of the offense of bigamy may be brought where the bigamous marriage took place, where the parties to the bigamous marriage are living, or where any party to the bigamous marriage, who is not charged with the offense, resides. The offense of bigamy is normally punished as a misdemeanor.
A justification means that a defendant is seeking to avoid liability for a criminal offense by showing the circumstances that justified the defendant's actions. A justification is not a true defense. When asserting a justification, the defendant generally admits that he or she committed the offense but claims that his or her conduct was justified under the facts and circumstances.
A justification is similar to a defense in that a defendant has the burden of raising the issue and of producing evidence that supports the issue. The prosecution then has the burden of proving beyond a reasonable doubt that the defendant's actions were not justified. The defendant is entitled to a jury instruction on the justification issues that are raised by the evidence, even if the issues are inconsistent with each other.
Most states recognize certain statutory justifications. Such justifications may include public duty, necessity, self-defense, defense of a third person, defense of property, and certain privileges regarding law enforcement officers, parents, teachers, and guardians.
A justification based on a public duty applies to anyone who is required or authorized by law to act in accordance with a judgment, a court order, or legal process. A defendant may claim the justification of public duty if he or she reasonably believed that his or her conduct was required to assist a public servant in the performance of the public servant's official duty. The justification of public duty does not normally include the right to use deadly force.
A justification based on a law enforcement privilege means that a law enforcement officer is justified in using force against another person when he or she reasonably believes that force is necessary to make an arrest or a search, to assist in making an arrest or a search, to prevent an escape after an arrest, or to assist in preventing an escape after an arrest. The law enforcement officer must be acting within his or her official capacity in order to claim that the use of force was justified. The law enforcement officer may be justified in his or her use of deadly force when the officer reasonably believes that deadly force is immediately necessary to make an arrest or to prevent an escape. Although the law enforcement officer is not required to retreat before using deadly force, a suspect may be entitled to a warning before the officer uses deadly force, if the warning is feasible. A law enforcement officer is generally not entitled to use deadly force during a search.
In some states, a parent, teacher, or a guardian may be justified in using non-deadly force against a child if the parent, teacher, or guardian reasonably believes that force is necessary for the discipline of the child or to protect the child. However, the use of deadly force against the child is never justified. The degree of force and the purpose of the force are questions of fact for a jury. The jury is entitled to weigh the child's age, sex, and condition and the circumstances that led up to the use of force against the child. Other states prohibit the use of force against a child under any circumstances.