Different Types of Defense Your Criminal Attorney Can Use to Win Your Case

The law provides a myriad of strategies and defenses available to the accused. It is the job of the criminal defense lawyer, like those in the Law Offices of Gary L. Rohlwing, to discover and select the best one depending on the facts and circumstances of the case.

In all jurisdictions, an accused is innocent until proven guilty. Proof beyond reasonable doubt is needed to tilt the scales of justice against the accused. To sustain a guilty conviction, there must be moral certainty on the part of the judge and the jury that the accused committed the act and that it amounts to a crime. The following are some of the tactics and strategies available to the accused:

Self-defense or defense of others

Self-defense is an affirmative defense to justify the acts of the accused’s use of force against another. This is also known as the castle doctrine.

Self-defense can be availed of when there is real and imminent danger on the person or property of a person or his relative or a third person.

Doctrine of necessity

As the name itself would imply, the doctrine of necessity is invoked when the accused committed the act in order to avoid a greater harm. However, it must be proven by the defense that there was indeed a necessity for the act.

Double jeopardy

Another criminal law principle that is recognized in a lot of jurisdictions is the principle of double jeopardy. This principle provides that a person cannot be tried twice for the same crime. This principle is often enshrined in a country’s constitution or a statute. It prevents the State, with its unlimited resources, from pursuing the accused relentlessly.

Statute of limitations

The statute of limitations, on the other hand, dwells on the “prescriptive periods” of crimes. This criminal law doctrine provides that an accused can no longer be prosecuted after a certain number of years.

However, certain crimes do not have prescriptive periods, which means that an action may be filed against an accused no matter how many years have passed since its commission. An example of which is murder.

Mistake of fact

In criminal law, there are two types of mistakes that can be committed: mistake of law and mistake of fact. A mistake of law cannot be used as a defense because of the maxim “ignorance of the law excuses no one from compliance therewith.” Meanwhile, mistake of fact can be used as a defense. For example, theft of an item the accused believes to be his is not considered as theft.

Violation of the rights of the accused

A violation of the rights of the accused can be a cause for the dismissal of the case. Police misconduct or a mishandling during custodial investigation, or any part for that matter, can be a cause for the dismissal. Examples of police misconduct include tampering and faking of evidence, coercing of witnesses, and using excessive force on the accused.

These are just a few of the many defenses available to the accused. Lawyers like those in the Law Offices of Gary L. Rohlwing are more than capable to assist in such matters.

Different Types of Defense Your Criminal Attorney Can Use to Win Your Case was originally published on http://criminal-duiattorney.com/blog

Law Offices of Gary L Rohlwing

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What Are Miranda Rights and How Do They Apply?

Miranda rights are those rights recited to suspects before they are arrested. The main purpose of these rights is to properly notify the accused of his arrest and to inform him about the admissibility of evidence that will be gathered afterwards. Knowing and understanding the Miranda rights are essential in every criminal case. Criminal defense lawyers, such as those from the Law Offices of Gary L. Rohlwing, are the perfect people to consult regarding such matters.

The Miranda rights are named after the case where such rights were first enunciated – Miranda v. Arizona. However, these rights are actually enshrined in the Fifth Amendment. The following are some of the rights customarily recited by police officers and other peacekeeping officials:

  1. You have the right to remain silent.
  2. Anything you say or do can be used against you in a court of law (right against self-incrimination).
  3. You have the right to an attorney  to be present before and after the questioning (right to counsel).
  4. If you cannot afford an attorney, we can provide one for you.

The Miranda rights should be recited to the suspect in a language known to him. The words should also be simple and clear for easy understanding. It is also essential that the police officer asks the accused if he or she understands the aforementioned rights. The police should then ask if the accused is ready to talk to them after knowing said rights.

It is important to note these rights only arise when the accused is taken into custodial interrogation or custodial investigation. During this phase, the investigation of the police becomes accusatorial. The line of questioning of the police is no longer general but focuses on a particular suspect.

To reiterate, the Miranda rights come into play in determining the admissibility of evidence, particularly testimonial evidence. For the Fifth Amendment to be invoked in a criminal proceeding, the following requisites must be present:

  1. The evidence must be gathered.
  2. The evidence must be testimonial in nature.
  3. The evidence must have been obtained during custodial interrogation or custodial investigation.
  4. The evidence must have been obtained through questioning or interrogation.
  5. The evidence must have been gathered by police or other state agents.
  6. The evidence must be presented and offered during criminal proceedings.

If all the requisites are present, the Fifth Amendment can be invoked, unless it is shown that the Miranda rights were properly read and/or recited to the accused.

It is also important to note there are certain exceptions to the Miranda rights. It is not always imperative that the Miranda warning be read to every accused. Under the American jurisdiction, the following are some of the exceptions:

  1. Jailhouse informant search
  2. Routine booking questioning
  3. Public safety exception

To question the admissibility of testimonial evidence that is in violation of the Miranda rights, criminal defense lawyers, such as those from the Law Offices of Gary L. Rohlwing, must file a motion in writing stating the facts and legal grounds as to why said testimonial evidence must be excluded or suppressed. The said motion must be filed before the court trying the case and served against the State.

The post What Are Miranda Rights and How Do They Apply? is republished from http://criminal-duiattorney.com/blog

Law Offices of Gary L Rohlwing

7112 N 55th Ave

Glendale, AZ 85301

(623) 937-1692

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from http://www.criminal-duiattorney.com/blog/criminal/what-are-miranda-rights-and-how-do-they-apply/

AFSC-AZ REPORT: A PORTRAIT OF DRUG INCARCERATION

American Friends Service Committee-Arizona analyzed the court records of people who were sentenced to prison for a drug crime in Maricopa, Pima and Yavapai counties in 2015. They discussed their findings and recommendations in Drug Sentencing in Arizona: A Prescription for Failure, by Rebecca Fealk, MPA, and Caroline Isaacs, MSW, August 2017. All quotes and data are taken from their report.

Most people believe that the vast majority of Arizona prisoners are violent offenders. This is not true according to the report:

“Arizona has the 5th highest incarceration rate in the United States. Statistics from the Arizona Department of Corrections (ADC) show 21.8% of those in prison in 2016 were serving time for a drug-related crime as their most serious charge. That is more than any other crime.”

The rest of the top 10 commitment offenses were: assault (12.8%), robbery (8.4%), burglary/criminal trespass (7.6%), murder (7.1%), sex offense (6.2%), weapons offense (4.4%), auto theft (4.2%), DUI (4.1%), and child molestation (4.0%)

“With the estimated 2015 per diem of $64.93 a day to house a person in prison, Arizona is spending $588,655 per day to house people whose worst crime is a drug offense.” (emphasis in original)

The report found that women in Arizona were incarcerated for drug crimes at a higher rate than men:

Arizona has the fourth highest female incarceration rate in the country, with 104 women behind bars per 100,000 population. In 2015, there were 4,028 women in Arizona prisons, about 9.4% of the total prison population. This mirrors a national trend. Between 1980 and 2014, the number of incarcerated women in the U.S. increased more than 700%, rising from a total of 26,378 in 1980 to 215,332 in 2014. This rate of growth outpaced the increase in incarceration of men by 50%. A full 32% of women incarcerated in Arizona were sentenced for drug crimes-the largest offense category by far.” (emphasis in original)

In the research cases, 10.23% of the prisoners were Black, 43.85% were Latino, 2.70% were Native American, and 42.11% were White.

The report shows that Arizona does incarcerate people convicted of drug crimes. If you or a loved one has been charged with drug offenses, you need an experienced attorney to defend you. Attorney Gary Rohlwing has over thirty years experience. Call him today for a free consultation.


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Law Offices of Gary L Rohlwing

7112 N 55th Ave

Glendale, AZ 85301

(623) 937-1692

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from http://www.criminal-duiattorney.com/blog/dui/afsc-az-report-a-portrait-of-drug-incarceration/

AFSC-AZ REPORT: RACIAL DISPARITIES IN DRUG CRIME SENTENCING

American Friends Service Committee-Arizona analyzed the court records of people who were sentenced to prison for a drug crime in Maricopa, Pima and Yavapai counties in 2015.  They discussed their findings and recommendations in Drug Sentencing in Arizona: A Prescription for Failure, by Rebecca Fealk, MPA, and Caroline Isaacs, MSW, August 2017.  All quotes and data are taken from their report.

The report found racial disparities that harm Blacks in the form of higher incarceration rates for possession of drugs, longer prison sentences, greater penalty for crack vs. powder cocaine, and longer prison sentences for fewer charges as discussed below.  

The report found that Blacks are incarcerated at a higher rate for possession of drugs

“The data collected is consistent with other national study findings, that Blacks are sentenced to prison at a higher rate for possession of drugs.  This is true across the board, for marijuana, methamphetamines, and narcotics. . . .

From the research, we see that people of color go to prison at a higher rate for possession of drugs, with Black people having the highest rate in every area.  This is especially concerning, as the Black population is actually underrepresented in the study as compared to the 2015 ADC population.”

The report also found that Blacks serve longer prison sentences for drug offenses as shown by two charts.  The first chart showed the average prison sentence in months for methamphetamine possession with prior convictions.  Black: 33.29; Latino-U.S. Citizen: 30.67; Latino-Non-U.S. Citizen: 24; Native American: 25.89; and White 32.55. The second chart showed the average prison sentence in month for marijuana sales with no prior convictions.  Black: 43; Latino-U.S. Citizen: 29.66; Latino-Non-U.S. Citizen: 21.27; Native American: 18; and White 27.75. The report concluded:

“Clearly, more data and further analysis is critical in order to investigate the cause of these disparities and to determine what possible policy or procedural changes are needed to ensure that all Arizonans are treated equally under the law.”

Like many states, Arizona passed “zero tolerance laws” that permitted a lower thresholds and/or longer sentences for crack cocaine than for the powder form of the drug.  These laws contributed to higher rates of incarceration for Blacks. The report noted:

“As a result, in 2010, Congress passed the Fair Sentencing Act (FSA), which reduced the sentencing disparity between offenses for crack and powder cocaine.  And in 2011 the U.S. Sentencing Commission made the law retroactive, allowing over 12,000 people-85% of whom are Black-to have their sentences for crack cocaine reviewed by a federal judge and possibly reduced.  In Arizona, we still have a 12:1 disparity in crack vs. powder cocaine sentencing.  In other words, it takes 12 times as much powder cocaine as crack cocaine to receive the same sentence.  Nine grams of powder cocaine or 750 milligrams of cocaine base trigger five-year prison terms for sales offenses.”  (emphasis in original).

The report noted that Blacks often serve more prison time for fewer charges:  

“Our research indicated that people of color, specifically Black people, frequently had fewer charges but received longer prison sentences. . . . Black people are likely to serve more prison time for fewer charges.”  (emphasis in original)

The report shows that Arizona does have racial disparities in the prosecution and sentencing of drug offenders.  If you or a loved one has been charged with drug offenses, you need an experienced attorney to defend you. Attorney Gary Rohlwing has over thirty years experience.  Call him today for a free consultation.

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from http://www.criminal-duiattorney.com/blog/criminal/afsc-az-report-racial-disparities-in-drug-crime-sentencing/

Report Highlights Disparities in Sentencing in Arizona

Racial disparities in sentencing have been found in several states.  A new report prepared by a nonprofit has found racial disparities in sentencing in Arizona.  The following is from “Report finds disproportionate sentencing along racial lines in Arizona”, by Pamela Ren Larson, Arizona Republic, November 15, 2018, https://www.azcentral.com/story/news/local/arizona/2018/11/15/prison-reform-fwd-us-report-finds-arizona-disproportionately-sentences-minorities/2006408002/

The “Cost to Communities” report released Thursday by FWD.us, a bipartisan nonprofit founded by California business and tech leaders.  At the state level, the report shows that communities of color are disproportionately sentenced to prison and spend longer times behind bars in some circumstances.  The report follows research released in September by the organization that encourages criminal-justice reform.

The report analyzes state prison admissions from Arizona counties using admission data from 1985 to 2017.

Looking at people imprisoned for marijuana possession, Hispanic people make up almost 60 percent of people admitted to prison for that crime according to the report.  Black people are one-eleventh the size of white people in Arizona yet the two groups represent near equal percentages of the people admitted to prison in Arizona for marijuana possession.  In five of Arizona’s 15 counties, black people are admitted at a rate three times their proportion of the county’s population.

According to Maricopa County Attorney Bill Montgomery, the disproportionate racial outcomes are not a “consequence of any biased decision-making” in his office.

“A couple of times, I’ve done a data review to look at a demographic breakdown of our submittals based upon race,” Montgomery said.

A review of all cases submitted to the county by Montgomery’s office found that among cases submitted to his office, the percentage of cases that involved African-American, Caucasian and Hispanic individuals remained nearly consistent with those that were filed, pled, dismissed, and sentenced by race. 

“There’s no statistical difference between how cases are submitted and how cases are resolved and how they are charged,” Montgomery said.

Yet consistent proportions of different racial groups across the criminal justice process do not depict that some individuals may be charged for the same offenses that others had dismissed, according to Dr. Cassia Spohn, director of Arizona State University’s School of Criminology and Criminal Justice.  Dr. Spohn also remarked that an analysis would need to compare each racial group according to specific drug crimes, such as marijuana or cocaine possession, and any analysis of sentencing outcomes needs to control for previous criminal history.

If you have been charged with a felony, you need an experienced defense attorney to defend you.  Attorney Gary Rohlwing has over thirty years experience. Please call him today for a free consultation.  

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Law Offices of Gary L Rohlwing

7112 N 55th Ave

Glendale, AZ 85301

(623) 937-1692

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from http://www.criminal-duiattorney.com/blog/law-offices-gary-rohlwing/report-highlights-disparities-in-sentencing-in-arizona/

Prosecutors Requesting Data from Defendants’ Virtual Assistants

Many people like the convenience of virtual assistants like Alexa and Siri.  Unfortunately, police and prosecutors may attempt to seize recordings from suspects’ and defendants’ virtual assistants as evidence of crimes.  The following is from “Police think Alexa may have witnessed a New Hampshire double slaying—now they want Amazon to turn her over” by Meagan Flynn, The Washington Post, November 14, 2018 https://www.chicagotribune.com/news/nationworld/ct-alexa-new-hampshire-murder-witness-20181114-story.html

Prosecutors in Farmington, New Hampshire, want to use any recordings found on the defendant Timothy Verrill’s Alexa, the artificial woman who personifies the Amazon Echo virtual assistant, to see if it provides key evidence that Verrill killed Christine Sullivan and Jenna Pelligrini on January 27, 2017.  A judge has ordered Amazon to turn over any recordings the Echo device may have made from Jan. 27, the day the women were killed, until Jan. 29.

In a statement to The Post, an Amazon spokesperson indicated Amazon wouldn’t be turning over the data so easily, appearing to prioritize consumer privacy as it has done in the past.

“Amazon will not release customer information without a valid and binding legal demand properly served on us,” the spokesperson said. “Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.”

When police arrived at the crime scene on January 29, 2017, they found blood splattered on the kitchen walls and on the refrigerator, New Hampshire State Police Sergeant Strong said. It was soaked into the mattress in the upstairs bedroom, where police believe Pellegrini was stabbed 43 times.

On the night of the murder, Smoronk, the suspected drug trafficker, received a phone call from Verill in the early morning hours of Jan. 27: Verrill, Smoronk told police, was concerned Jenna Pellegrini was an informant, Foster’s Daily Democrat reported.

In a matter of hours, home surveillance captured Verrill arriving at the home where in a flannel shirt and a ball cap, Strong testified during the bail hearing. Within 20 minutes, he was captured attempting to obscure the lens of three of the surveillance cameras before ultimately shutting the system down.

And over the next several days prosecutors say he made a series of suspicious trips around town, according to footage by WMUR-TV. He bought cleanup products from a Walmart. He went to go see a priest, and he had “not one, but two breakdowns that take him to the hospital,” the prosecutor said.

The case recalls a 2015 Arkansas murder investigation in which a woman was found dead in a backyard hot tub the morning after the man who lived there, Nate Bates, invited friends over to watch a football game. Bates was soon charged in her death and pleaded not guilty.  Police found Alexa sitting on Bates’s kitchen counter.

Amazon initially resisted law enforcement’s efforts to obtain the potential relevant recordings but ultimately relented after Bates gave permission for his Amazon Echo to be searched – but it didn’t turn into the linchpin prosecutors hoped for: They dropped the charges against Bates in November 2017 after finding that the evidence, including the Echo recordings, supported more than one “reasonable explanation” for the victim’s death.  

If you have been charged with a crime where virtual assistant evidence may be used against you, you need an experienced defense attorney.  Attorney Gary Rohlwing has over thirty years experience. Please call him today for a free consultation.

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from http://www.criminal-duiattorney.com/blog/law-offices-gary-rohlwing/prosecutors-requesting-data-from-defendants-virtual-assistants/

False Accusations of Sexual Assault

The MeToo Movement and the recent hearing testimonies of Dr. Christine Ford and Judge Brett Kavanaugh have people wondering what percentage of sexual assault accusations are false.

The following is from “False reports of sexual assault not as rare as claimed, studies show” by Rowan Scarborough, The Washington Times, October 7, 2018 https://www.washingtontimes.com/news/2018/oct/7/false-sex-assault-reports-not-rare-reported-studie/

Brent E. Turvey, a criminologist, wrote a 2017 book that dispels the idea that false accusations of sexual assault are relatively rare. His research, and that of two co-authors, cited statistical studies and police crime reports. One academic study showed that as many as 40 percent of sexual assault charges are false. Mr. Turvey wrote that the FBI in the 1990s pegged the falsity rate at 8 percent for rape or attempted rape complaints.

“There is no shortage of politicians, victims’ advocates and news articles claiming that the nationwide false report for rape and sexual assault is almost nonexistent, presenting a figure of around 2 percent,” writes Mr. Turvey, who directs the Forensic Criminology Institute. “This figure is not only inaccurate, but also it has no basis in reality. Reporting it publicly as a valid frequency rate with any empirical basis is either scientifically negligent or fraudulent.”

“You see where they are going with this,” said Elaine Donnelly, the director of the Center for Military Readiness.   “Any man who doubts Ford is hostile to women experiencing abuse, who make accusations truthfully 90 to 98 percent of the time. This is why hard data from the Pentagon, which shows rates of false accusations averaging 18 percent in annual reports since 2009, is important.”  Women’s advocates say that an unfounded case doesn’t necessarily mean the accuser was lying.

The National Sexual Violence Resource Center puts the false report rate at 2 percent to 10 percent.  “Research shows that rates of false reporting are frequently inflated, in part because of inconsistent definitions and protocols, or a weak understanding of sexual assault,” the Center said.

Mr. Turvey’s 2017 book, “False Allegations: Investigative and Forensic Issues in Fraudulent Reports of Crime,” looked at a range of bogus reporting, including on rape and sexual assault. He examined existing studies and police statistics.

“False reports happen, they are recurrent and there are laws in place to deal with them when they do,” he wrote. “They are, for lack of a better word, common.”

Mr. Turvey quotes a study by researcher Edward Greer, past president of the Association American Law Schools. He traced the one and only source for the “2 percent” assertion to a 1975 book, “Against Our Will: Men, Women and Rape,” which quoted statistics from New York City, not from across the nation.

Mr. Turvey cites 10 studies that debunk the 2 percent assertion in the U.S. and abroad.

“The power of any lie is equal only to our desire to believe it,” Mr. Turvey wrote. “Specifically, our need and eagerness to believe it. This is the problem with belief — which is accepting something as true or correct without proof.”

If you have been falsely accused of committing a sex crime, you need an experienced defense attorney to represent you.  Attorney Gary Rohlwing has over three decades of experience representing people in these situations. Please call him today for a free consultation.

False Accusations of Sexual Assault Read more on: Gary L Rohlwing Lawyer





Law Offices of Gary L Rohlwing

7112 N 55th Ave

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(623) 937-1692

https://goo.gl/maps/vntMC15aMUG2

from http://www.criminal-duiattorney.com/blog/criminal/false-accusations-of-sexual-assault/