If you have recently been charged with a criminal offense you are undoubtedly concerned about the outcome of your case. The outcome, in turn, often depends on the defense options available to you. Even if you ultimately decide to enter into a plea agreement with the State of Nebraska, having a viable defense gives you tremendous bargaining power during plea negotiations. As a defendant, you may be interested to know how a criminal defense lawyer comes up with a defense. Although every criminal prosecution is unique, there are some common routes by which a defense attorney arrives at a defense strategy.
Criminal Offenses –The Basics
In the United States we operate under a federalist form of government, meaning we have a strong central government (federal government) as well as numerous smaller governments (state governments). Both the federal government and each individual state government has the authority to enact criminal statutes. Therefore, you could be charged with a violation of a federal criminal statute, a state criminal statute, or both.
Our criminal justice system also operates on the belief that an accused is innocent until proven guilty and that guilt must be proven beyond a reasonable doubt. As such, the State, through the prosecuting attorney, must prove each and every element of the statute beyond a reasonable doubt in order for you to be convicted. At least that is how the system is supposed to work. For example, consider Nebraska Revised Statute 28-511(1) which reads:
“A person is guilty of theft if he or she takes, or exercises control over, movable property of another with the intent to deprive him or her thereof.”
In order to understand how a criminal defense attorney decides on possible defenses, it is important to first have a clear understanding of what the prosecutor has to prove in order to convict you. To be found guilty, the prosecutor must prove all elements of the offense, including:
- Takes, or exercises control over
- Movable property
- Of another
- Intent to deprive
The Evidence
One of the first things your criminal defense attorney should do is examine both the type and the strength of the evidence the State has against you. Remember, in our justice system a defendant is not required to prove his/her innocence. The State has the burden to prove guilt, not the other way around. Therefore, the evidence the State has gathered is crucial. Some evidence carries more weight than other evidence. Your attorney’s job is to weigh all the evidence and decide how strong it is, collectively. A case heavy with circumstantial evidence, for example, is less likely to result in a conviction than a case made up entirely of direct evidence. Finding your fingerprints at the scene of a crime, for instance, may not be so damning if you had a legitimate reasons for being there at some time prior to the crime. On the other hand, a video showing you entering the area where the crime occurred just minutes before it happened would be considered strong evidence. Your criminal defense attorney will evaluate the evidence to decide if what the State has is weak enough to risk going to trial with your defense being simply that the State cannot prove all the elements of the crime beyond a reasonable doubt.
The Police
Another common avenue of defense centers on the conduct of the police that investigated the crime. The strength of the evidence the State has doesn’t matter if the evidence was obtained illegally because illegally obtained evidence can be excluded from trial. For example, if the police conducted an illegal search and seizure that resulted in the seizure of critical evidence in your case, your attorney may file a motion to suppress (or exclude) the evidence. If the motion is granted, that evidence cannot be admitted at trial.
Affirmative Defenses
Although a defendant is never required to put on a defense, sometimes doing so is advisable. This is particularly true if you have what’s known as an affirmative defense. An affirmative defense is one that, if true, will negate criminal liability even if it is proven that you committed the crime. Insanity, self-defense, and entrapment are common affirmative defenses. For example, if you are charged with murder but you are able to prove that you acted in self-defense, you will be found not guilty even though you did actually kill someone.
Contact Us
If you have been charged with a criminal offense in Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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