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Sometimes, The Truth Hurts: Common Misconceptions In Criminal Defense Cases

Posted by Alex K. Kriksciun | Jul 21, 2017 | 0 Comments

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Many people have preconceived notions about how the criminal justice system works.  Some of those notions are not accurate.  Below, I detail three misconceptions that I often see in my practice and the reality behind those misconceptions

Misconception:  Assault and battery are the same offens

Reality:  Assault and battery are not the same offense.  Battery is defined (for our purposes) as “the intentional use of force or violence upon the person of another.”  Assault is defined as an “attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”  Thus, battery is the actual unwanted touching or use of force, and assault is intentionally trying to commit that unwanted touching or use of force

Imagine walking down the street.  Unfortunately, you happen to walk straight into the path of an armed, violent criminal.  I recognize this story sounds wonderful already.  Let's assume that the criminal pulls out a gun, points it at you, and demands that you fork over all your money.  In addition to armed robbery, the state could charge that gunman with aggravated assault, because the gunman placed you in fear of the use of force (i.e. getting shot).

Now let's say that this violent criminal, heaven forbid, simply walks up behind you, shoots you in the back, and runs away.  That would be an aggravated battery (or possibly attempted murder) given that it involves the actual use of force or violence against another (i.e. shooting somebody).

Misconception:  Suspects cannot be arrested on the word of one person alon

Reality:  If the police believe that one person's statement provides them with probable cause to arrest, they can act on that statement alone

I see this often in sexual abuse cases.  One person (whether child or adult) makes a complaint of sexual misconduct against another person.  The police find the complaint to be credible, issue an arrest warrant, and take the suspect into custody.  Family members them come to me with numerous complaints, mostly amounting to something to the effect of, “how can they arrest somebody just based on the word of one person?

In a situation such as this, I can understand the family's complaints and concerns.  Although, as I have stated, there is absolutely nothing unlawful or illegal about arresting an alleged offender in such a situation, I can certainly see from a layman's perspective why it would seem very unfair.  The situation seems to violate the bedrock principle of American criminal law: that all persons are presumed innocent until proven guilty of a crime beyond a reasonable doubt.

Moreover, if somebody is arrested for a sexual offense, in most cases, the bond is going to be very high.  It is entirely possible that the family may not be able to make bond, meaning that the alleged offender will have to remain in jail while his or her case is pending.

The simple fact is that, under Louisiana law, a person can be convicted of a crime based on the testimony of one person alone if the factfinder believes that testimony and finds the witness credible.   That legal principle has been referred to hundreds of times by Louisiana appellate courts

I would add that most reports of sexual abuse are legitimate.  However, there have been enough “big-news” falsifications (the Duke lacrosse case and thefabricated “gang rape” at my alma mater UVA come immediately to mind) to place even more doubt in the family's mind.  I would also add that I also see this situation in other types of cases, such as a drug conspiracy where one conspirator snitches on another who had never been under the crosshairs of law enforcement.  

Misconception:  Every criminal defense case involves some sort of forensic or scientific evidenc

Reality:  Most criminal cases are built on testimony, witnesses, surveillance, identifications, and other types of “non-forensic” evidence.  As above, this is something I often hear complaints about.  Defendants and their families often ask me, “where's the DNA,” “where are the fingerprints,” “where's the ballistics,” “where's the rape kit,” and the like.  Many criminal cases are built on some sort of forensic evidence.  However, the simple fact is that most are not

Defenses in criminal cases can usually be broadly categorized as either “legal” defenses or “factual” defenses.  An example of a legal defense would be, “my client was there, but his conduct was not unlawful.”  In that type of case (as in every other legal defense), forensic evidence would not be at issue.  Examples of factual defenses include, “my client has an alibi,” “my client was misidentified,” “my client did not do the act he or she is accused of.”  I cannot imagine how forensic evidence would pertain to an alibi defense or a misidentification defense.   Forensics may be pertinent to a “my client didn't do it” defense, but even that would be in a minority of those types of cases.  Thus, forensic evidence is only really at issue in a small subset of factual defense cases

If a person is tried before a jury, that jury will more than likely expect and want to see some sort of forensic evidence implicating the defendant.  These days, jurors have been inundated with television shows, news reports, Facebook posts, and many other forms of mass media detailing how forensic evidence was used to convict or exonerate a defendant.  We in the business even have a name for this, that being the “CSI Effect.

If there is no forensic evidence in a case, this effect tends to make a jury predisposed to acquit rather than convict.  This is something that prosecutors must be very careful about.  In those cases where there is no forensic evidence, prosecutors will go to great pains in jury selection to explain to jurors that forensic evidence is not necessary to convict and that jurors should not always expect to hear or see scientific evidence in every case

Good defense lawyers can use this to their advantage.  If you need a lawyer that will be able to exploit holes in the prosecution's case, call the Law Office of Alex Kriksciun today

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...


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