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Posted: 5/11/2001 5:34:12 PM EDT
Come awn, free legal advice! What exactly is the defense’s obligation under this? Do they have to offer absolute proof* or just make a good case? On a machine gun case, does the defendant have to admit owning an outlawed machine gun, then provide his defense is legal ownership? Or is that self incrimination? In other words, someone charged with murder and wants to plea insanity, and affirmative defense correct? Do they first have to admit they killed someone? Or can they deny killing that person and just claim to be insane? Inquiring minds want to know. *I know there is know such thing as absolute, just can’t think of a better word. RK
Link Posted: 5/11/2001 6:36:37 PM EDT
An affirmative defense is a defense plead, before trial, in a civil proceeding. The phrase is not usually used in the context of a criminal trial. So, what we are talking about, at least your first inquiry, is a run-of-the-mill defense. A defense to a crime is not plead, it's presented by way of evidence (circumstantial and/or direct) when the government has rested (and survived a motion to strike their evidence for failure to prove, as a matter of law, their prima facia case- each element of the offense). The defendant's burden is not "absolute" nor is is beyond a reasonable doubt. The defendant merely has to create enough reasonable doubt as to guilt and/or that the action was justified in light of the defense. The classic example is self defense in an assault and battery case. A defendant is allowed to use such force necessary to repel an aggressor's attack. If, in the course of that "repel", he batters the aggressor, his crime is justified under self defense. Insanity is a whole other story. Insanity defenses, like an affirmative defense, must be raised prior to trial (number of days depends on the state) and, rather than a defense justifying behavior, it is an "excuse" as to the criminal conduct. The "plea-before-trial" requirement is there traditionally so that the court and/or the government can have their own experts examine the defendant to see if he really was legally insane at the time of the offense (unlike incompetent to stand trial- different standard). The insanity test (majority rule) is called the McNaughten test and basically boils down to whether or not the defendant truly appreciated the criminality of his conduct at the time of the offense. There is also the "irresistible impulse" test and other variations depending on your state. Generally, you may claim other defenses along with insanity, however, as a practical matter, it's hard given the amount of detail that goes into a pych examination. Two years ago I plead a defendant to second degree murder for shooting his roommate in the head point blank and emptying the remaining five rounds in his back. My client was schitzophrenic and, according to my experty, legally insane at the time of the act. The commonwealth's attorney had two experts (slightly more persuasive than my own) who said differently. In the end, we agreed to 2nd degree with a cap and I was able to put on my evidence as to insanity at the sentencing hearing in mitigation. So, even if you plead guilty, you sometimes can still put on defense evidence.
Link Posted: 5/13/2001 11:10:17 AM EDT
Thanks Steve, that will give me something to study for a bit. Of course the insanity was just an example, and my obvious interest is assault weapons and the related legal ramifications that exist.
Link Posted: 5/14/2001 9:45:22 PM EDT
[Last Edit: 5/14/2001 9:47:28 PM EDT by allbrandtr]
Rightout Kill raised an interesting point about the 5th Amendment that he might not have really thought about. "Self Incrimination" "On a machine gun case, does the defendant have to admit owning an outlawed machine gun, then provide his defense is legal ownership? Or is that self incrimination? The Gov't cannot use the "fruit of the poisonous tree" as evidence at trial. If the evidence was obtained illegally, or illegally obtained evidence led the Gov't to other evidence that they would not have otherwise been able to get, it is illegal. They cannot force a defendant to admit owning an outlawed machine gun. That would violate your constitutional rights against "compelled testimonial self-assertion," which is a violation of the 5th as well. See "nor shall be compelled in any CRIMINAL CASE to be a witness against himself." As long as the defendant makes no voluntary statment, the Gov't will have to prove everything, starting with ownership, legality, and to some degree where relevant, intent. Despite being a gun-owner, I am sure Justice Scalia would disagree with me. I highlighted CRIMINAL CASE, to differentiate that a civil case has different standards. A person may be deposed in a civil trial and may not have the right to exercise the 5th Amendment in the context discussed above. Thus, many cases proceed for civil damages where the burden of proof is lower, or evidence can be entered that would not be legal in a criminal trial. See OJ Simpson. This is actually a good idea. We should require the highest level of proof and burden upon the Gov't before a person is incarcerated and has their "liberty" taken away. When these standards erode, we all need to worry. See the recent US Supreme Court case US v. Whren. (A mother was arrested for not wearing her seatbelt, and her children nearly taken to police custody.) It may be legal for the police to search a car incident to an arrest for a misdemeanor like not wearing a seat belt. That sound was the 4th Amendment "reasonable searches and seizures" clause flying downrange. Disclaimer: I am not a lawyer or giving legal advice. Everything I learned came out of an outdated textbook, or an outdated hippie professor).
Link Posted: 5/14/2001 11:38:23 PM EDT
Originally Posted By allbrandtr: "On a machine gun case, does the defendant have to admit owning an outlawed machine gun, then provide his defense is legal ownership? Or is that self incrimination?
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An accused can never be compelled to testify in a criminal case. He may proffer any defense he and his attorney deems viable once the government has met its burden of proving its prima facia case and rested. Going back to the original question. "Does the accused admit to owning the [i]outlawed machine gun[/i]?" He can admit possession and ownership and/or contest the "unlawfullness" of the machine gun. He can assert legal possession of the gun as a defense. He does not have to "admit" he illegally possessed it- might as well plead guilty. Also, the 5th can always be waived.
The Gov't cannot use the "fruit of the poisonous tree" as evidence at trial. If the evidence was obtained illegally, or illegally obtained evidence led the Gov't to other evidence that they would not have otherwise been able to get, it is illegal.
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Not sure why you mentioned this, however, the exclusionary rule has been discussed in various threads- might want to check the archives for them. You might find them interesting. Your paraphrase is accurate, however, the subject of suppressed evidence has many twists, turns and exceptions.
They cannot force a defendant to admit owning an outlawed machine gun. That would violate your constitutional rights against "compelled testimonial self-assertion," which is a violation of the 5th as well. See "nor shall be compelled in any CRIMINAL CASE to be a witness against himself." As long as the defendant makes no voluntary statment, the Gov't will have to prove everything, starting with ownership, legality, and to some degree where relevant, intent. Despite being a gun-owner, I am sure Justice Scalia would disagree with me. I highlighted CRIMINAL CASE, to differentiate that a civil case has different standards. A person may be deposed in a civil trial and may not have the right to exercise the 5th Amendment in the context discussed above. Thus, many cases proceed for civil damages where the burden of proof is lower, or evidence can be entered that would not be legal in a criminal trial. See OJ Simpson.
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Actually, the privilege can be asserted in any proceeding, civil or otherwise. I have had clients assert the privilege in depositions, civil trials and even civil responsive pleadings (most recently in a civil embezzlement case). So far as the government's burden, its the same in every criminal case: they must prove a prima facia (means a more than just probable cause) showing that the defendant has violated the law, specifically, that each essential element has been met (In robbery for example, that the accused 1) took property, 2) of another, 3) by force, threats or intimidation, 4) with the intent to permanently deprive the owner of such property).
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