Defenses to Criminal Charges
Here are some of the common defenses that criminal defendants can raise to defend against criminal charges.
To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. There are many types of defenses, from “I didn’t do it” to “I did it, but I was too drunk to know what I was doing.” Here are some of the most common defenses that criminal defendants can raise.
The Defendant Didn’t Do It
Most often defendants try to avoid punishment by claiming they did not commit the act in question.
The Presumption of Innocence
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant’s guilt, but also that the defendant need not say or do anything in his own defense. A defendant may simply remain silent, not present any witnesses, and argue that the prosecutor failed to prove his or her case. If the prosecutor can’t convince the jury that the defendant is guilty, the defendant goes free.
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty “beyond a reasonable doubt.” This standard is very hard to meet. As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant’s most common defense is often to argue that there is in fact reasonable doubt.
The Alibi Defense
An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie’s alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.
The Defendant Did It, But …
Sometimes a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.
Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon, or murder. The defendant admits that he or she did in fact commit the crime, but claims that it was justified by the other person’s threatening actions. The core issues in most self-defense cases are:
- Who was the aggressor?
- Was the defendant’s belief that self-defense was necessary a reasonable one?
- If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until he or she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that he or she is about to be physically attacked, that person has the right to strike first and prevent the attack. However, an act of self-defense cannot use more force than is reasonable — someone who uses too much force may be guilty of a crime.
The Insanity Defense
The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.
The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:
- Despite popular perceptions to the contrary, defendants rarely enter pleas of “not guilty by reason of insanity.” When they do, judges and jurors rarely uphold it.
- Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the “McNaghten rule,” which defines insanity as “the inability to distinguish right from wrong.” Another common test is known as “irresistible impulse”: a person may know that an act is wrong, but because of mental illness he or she cannot control his or her actions (this person is described as acting out of an “irresistible impulse”).
- Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
- An insanity defense normally rests on the testimony of a psychiatrist, who testifies after examining the defendant, his or her history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
- Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution. This can be a very painful and humiliating experience, one that many defendants choose to forgo rather than rely on the insanity defense.
Under the Influence
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires “specific intent” (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn’t entirely excuse the defendant’s actions. In this situation, the defendant will usually be convicted of another crime that doesn’t require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn’t require specific intent.
Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.
To learn more about criminal defenses and all other aspects of a criminal trial, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).
Overview of Criminal Defense Terminology
Most criminal trials follow a uniform set of procedures. The “Process” tab on this website shows the step-by-step guide detailing the process
The many rituals associated with modern trials have developed over centuries. America’s common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. Assuming that the trial is carried out to completion, those procedures are as follows:
- Decision by Judge or Jury. The defense generally decides whether a case will be tried to a judge or a jury, but in some jurisdictions both the prosecution and the defense have the right to demand a jury trial.
- Jury selection. If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called “voir dire.” In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys as well as questions that the judge comes up with on his or her own. In Wisconsin, the judge, defense and prosecution all get to separately ask questions.
- Evidence issues. The defense and prosecution request the court, in advance of trial, to admit or exclude certain evidence. These requests are called motions “in limine.”
- Opening statements. The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. Because neither side wants to look foolish to the jury, the attorneys are careful to promise only what they think they can deliver. In some cases, the defense attorney reserves opening argument until the beginning of the defense case.
- Prosecution case-in-chief. The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor.
- Cross-examination. The defense may cross-examine the prosecution witnesses.
- Redirect. The prosecution may re-examine its witnesses.
- Prosecution rests. The prosecution finishes presenting its case.
- Motion to dismiss (optional). The defense may move to dismiss the charges if it thinks that the prosecution has failed to produce enough evidence — even if the jury believes it — to support a guilty verdict.
- Denial of motion to dismiss. Almost always, the judge denies the defense motion to dismiss.
- Defense case-in-chief. The defense presents its main case through direct examination of defense witnesses.
- Cross-examination. The prosecutor cross-examines the defense witnesses.
- Redirect. The defense re-examines the defense witnesses.
- Defense rests. The defense finishes presenting its case.
- Prosecution rebuttal. The prosecutor offers evidence to refute the defense case.
- Settling on jury instructions. The prosecution and defense get together with the judge and craft a final set of instructions that the judge will give the jury.
- Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it and explaining why the jury should render a guilty verdict.
- Defense closing argument. The defense makes its closing argument, summarizing the evidence as the defense sees it and explaining why the jury should render a not guilty verdict — or at least a guilty verdict on a lesser charge.
- Prosecution rebuttal. The prosecution has the last word, if it chooses to do so, and again argues that the jury has credible evidence that supports a finding of guilty.
- Jury instructions. The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges “preinstruct” juries, reciting instructions before closing argument or even at the outset of trial.)
- Jury deliberations. The jury deliberates and tries to reach a verdict. Most states require unanimous agreement, but Oregon and Louisiana allow convictions with only 10 of 12 votes.
- Post-trial motions. If the jury produces a guilty verdict, the defense can make a post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant.
- Denial of post-trial motions. Almost always, the judge denies the defense post-trial motions.
- Pre-Sentence Investigation (PSI). If a defendant is found guilty (either by a plea or jury verdict) judges most often will order a Pre-Sentence Investigation (a.k.a. PSI). A PSI is done by a probation agent and informs the judge on most aspects of a defendant’s life so he or she knows more about the defendant before undergoing the sentencing process.
- Sentencing. Assuming a conviction (a verdict of “guilty”), the judge either sentences the defendant on the spot or sets sentencing for another day, usually after a PSI is received regarding a felony.
Party To The Crime
Anyone who intentionally participates in a crime or helps a criminal before or after a crime may be held responsible for the crime under accomplice liability.
People can participate in crimes in different ways and to different degrees. For instance, in a bank robbery, one person may enter the bank and conduct the holdup, while another person is waiting in the getaway car and a third person is positioned at a different location as a spotter.
Principals and Accomplices
As a general rule, the law refers to the main actor in a crime as the principal and to assisting persons as accomplices. Technically, an accomplice is one who intentionally helps another to commit a crime.
Even if an accomplice does not carry out the crime, in the eyes of the law the accomplice’s pre-crime assistance makes him or her just as guilty as the person who does the deed itself. For example, assume that Lars Senny breaks into a warehouse and steals property belonging to the warehouse owner. Hal Perr would be Lars’s accomplice and just as guilty as Lars if Hal takes any of the following steps to assist Lars to commit the theft:
- Hal works in the warehouse and drugs the warehouse night watchman before leaving work on the day of the theft.
- Hal cuts the wires to the burglar alarm (or cuts a hole in the fence) so that Lars can enter the warehouse without being detected.
- Hal is a designer of warehouses and meets with Lars a week before the theft to review warehouse layouts and exit routes.
- Hal rents a U-Haul and parks it outside the warehouse on the night of the robbery.
- Knowing what Lars has in mind, Hal agrees to babysit for Lars’s infant child while Lars goes to the warehouse.
To prove that a defendant is an accomplice, the government must prove that he or she intentionally aided in the commission of a crime. This means that the defendant must realize that the principal is going to commit a crime and that the accomplice intends to help the crime succeed.
Accomplices, Accessories, Aiders and Abettors, and Principals
To distinguish the criminal culpability of one from another, the common law developed specialized terms for the various ways in which one could be an accomplice. For instance, a “principal in the first degree” was the person who actually carried out a crime. A “principal in the second degree” (an “aider and abettor”) was a helper who was present at a crime scene but in a passive role, such as acting as a “lookout.” An “accessory before the fact” was a helper who was not present at the crime scene. While some state laws retain the common law terminology, few states make any distinction between the criminal liability of crime perpetrators and their accomplices. All can be punished equally, whether they actually perpetrate a crime or only help bring it about.
Accessory After the Fact
An accessory after the fact is someone who, knowing that a felon has finished committing a crime (usually the crime has to be a felony), helps the felon avoid arrest or trial. In most states, accessories after the fact face far less punishment than accomplices or principals.
Conspirators are two or more people who agree to commit a crime. (The distinction between accomplices and conspirators is that the former are “helpers,” while each conspirator is a principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime that they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. As some protection against convicting people purely for their private thoughts, in most states conspirators are not guilty of the crime of conspiracy unless at least one of them commits an “overt act.” An “overt act” is an activity that in some way moves a conspiracy into motion.
Search Warrants: What They Are and When They’re Necessary
Learn when police officers must obtain a warrant before they search your home or other property.
A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of “the premises at 11359 Happy Glade Avenue between the hours of 8 a.m. to 6 p.m.” and direct the police to search for and seize “cash, betting slips, record books, and every other means used in connection with placing bets on horses.”
How Police Obtain Search Warrants
Police officers obtain search warrants by convincing a judge or court commissioner that they have “probable cause” to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or court commissioner with information in the form of written statements under oath, called “affidavits,” which report either their own observations, or those of private citizens or police undercover informants. If the judge believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.
The suspect, who may be connected with the place to be searched, is not present when the warrant is issued and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.
What Police Can Search for and Seize Under a Warrant
The police can search only the place described in a warrant and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.
If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene of a search. If an officer merely has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can only question the onlooker and, if necessary for the officer’s safety, conduct a frisk for weapons (but not do a full search).
When Search Warrants Aren’t Required
Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn’t apply at all.
If the person in control of the premises freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search.
Many disputes about consent have to do with who has the right to consent. If there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other. This does not work for couples living together. It is more often saved for college students who share a divided house. Similarly, a landlord lacks authority to consent to a search of leased premises. The same is true for hotel operators.
On the other hand, an employer can validly consent to a search of company premises, which extends to an employee’s work area but not to clearly private areas such as an employee’s clothes locker. A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don’t.
The Plain View Doctrine
Police officers do not need a warrant to search and seize contraband or evidence that is “in plain view” if the officer has a right to be where the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.
Search Made in Connection With an Arrest
Police officers do not need a warrant to make a search “incident to an arrest.” After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy.
Police may sometimes also make what’s known as a “protective sweep” following an arrest if they have a reasonable belief that a dangerous accomplice might be hiding inside a residence. When making a protective sweep, police officers can walk through a residence and make a “cursory visual inspection” of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view during the sweep.
The Emergency Exception
As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:
- An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
- Following a street drug arrest, an officer enters the house after the suspect shouts into the house, “Eddie, quick, flush it!” The officer arrests Eddie and seizes the stash.
- A police officer on routine patrol hears shouts and screams coming from a residence, rushes in, and arrests a suspect for spousal abuse.
- A police officer “in hot pursuit” of a fleeing suspect continues the chase into the suspect’s dwelling in order to make the arrest.
In these types of emergency situations, an officer’s duty to protect people and preserve evidence outweighs the warrant requirement.
Allowing Police to Make a Warrantless Search
A search warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter a home or building without a warrant, a person should not risk injury or a separate charge of “obstructing an officer.” Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer’s actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.
Searches of Cars and Their Occupants
Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.
While a police officer cannot search a car simply because the car was stopped for a traffic infraction, the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can “frisk” the occupants for weapons if the officers have a “reasonable suspicion” that the occupants are involved in criminal activity and are reasonably concerned for their safety.
For more information on the legality of various police searches and seizures, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman (Nolo) or talk to one of our attorneys for free at 1-888-375-3056.
Sentencing Alternatives: Prison, Probation, Fines, and Community Service
A convicted defendant’s punishment need not include prison.
A sentence may involve one or more different elements, including incarceration (prison, jail), probation, restitution (victim compensation), and community service.
Some state laws require the judges to impose what are called “determinate” prison sentences. The State of Wisconsin has a set of laws called “Truth in Sentencing” which dictate a determinate sentence. A determinate sentence is a fixed-term sentence pronounced by a judge. For example, a defendant sentenced to “30 days in county jail” or “five years in state prison” has received a determinate sentence.
Other state laws require judges to give “indeterminate sentences.” (Wisconsin is not one of them….We have a “Truth in Sentencing” sentence determinate law) Indeterminate sentences are those in which the legislature sets a minimum and/or maximum time of incarceration but leaves the decision as to when to release an inmate to prison officials. As a general rule, indeterminate sentences are only imposed on people who are sentenced to state prison after being convicted of a felony.
Suspended Sentences and Probation
Sometimes a defendant’s prison sentence is “suspended.” A suspended sentence is jail or prison time that is put on hold if the defendant complies with certain other obligations, for example, the conditions of probation or the completion of a drug treatment program.
Under a suspended sentence, if the prosecution or probation department can convince a judge that the defendant violated the condition that led to the sentence being suspended in the first place, the judge has authority to order the defendant to serve the original sentence. The probationer is not entitled to a full-blown trial when the question is only whether the defendant violated probation, though the prosecution can choose to also file charges on the incident.
Most states limit when and under what circumstances a court may impose probation on a criminal defendant. For instance, some states do not allow a judge to impose probation on defendants who have a prior conviction for cocaine sales.
Offenders who are put on probation are typically required to adhere to a number of “conditions of probation,” including:
- Obey all laws.
- Abide by any court orders, such as an order to pay a fine or restitution.
- Report regularly to the probation officer.
- Report any change of employment or address to the probation officer.
- Abstain from the use of alcohol or the use of any non-prescribed narcotic drugs.
- Submit to regular alcohol or drug testing.
- Refrain from travel outside of the jurisdiction or state without prior permission of the probation officer.
- Avoid certain people and places.
If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing.
Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include minor drug possession (of a small amount of marijuana, for example), fish and game violations, shoplifting and traffic violations. In more serious offenses or where the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation.
A forfeiture is similar to a fine, but paid in a civil ordinance violation, such as a speeding ticket, county disorderly ticket or, on in Wisconsin, an OWI 1st.
While fines go to the state (or federal or local government prosecuting the crime), restitution is money paid by the defendant to the victim or to a state restitution fund. Offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries or for medical and psychological treatment costs, or to pay funeral and other costs where a victim dies.
In some cases, the “victim” is society, such as in welfare and Medicare fraud schemes, where defendants may be sentenced to pay the state back the money defrauded. Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison, community service, and/or probation.
Judges can sentence defendants to perform unpaid community work called “community service” to repay a debt to society for having committed the offense. The defendant may be required to perform community service in addition to receiving some other form of punishment, such as probation, a fine, or restitution.
Miscellaneous “Alternative Sentences”
There are many different types of “alternative sentences,” which can include fairly innovative punishments. Offenders have been required to:
- install breathalyzer devices in their cars so that their cars will not start unless the offender has “clean” breath. This is more often than not mandatory under an OWI conviction as part of the sentence
- give lectures or teach classes about the dangers of criminal behavior
- complete a drug or alcohol treatment program, or
- stay at home under “house arrest.” a.k.a. “the ankle bracelet”. These are only offered by the jails under their own guidelines and at their discretion, not the courts.
Some cases can be “diverted” out of the criminal justice system. Criminal charges are normally dropped when a defendant successfully completes a diversion program. Diversion gives defendants a chance to escape the stigma of a criminal conviction.
Defendants whose cases are diverted typically have to participate in a treatment or rehabilitation program. Diversion programs are most often available to defendants charged with misdemeanors and nonviolent felonies involving drugs or alcohol. In some jurisdictions, diversion may be available to defendants charged with domestic violence, child abuse or neglect, traffic-related offenses, or even writing bad checks.
Prosecutors sometimes voluntarily offer diversion to defendants who are clearly eligible under a community’s guidelines. Defense counsel may also suggest diversion to prosecutors, sometimes even before formal charges are filed.
The Right to Own a Gun Under Heller
How far does the Supreme Court’s ruling on an individual’s right to own a gun under Heller go?
In District of Columbia v. Heller, 54 U.S. ___ (2008), the U.S. Supreme Court ruled that the U.S. Constitution protects an individual’s right to own a gun for personal use. Yet despite the Court’s clear ruling that people may keep a loaded handgun at home for self-defense, Heller allows for certain restrictions to gun ownership. The ruling leaves many uncertainties as to which types of gun control laws will be allowed to stand and which will be ruled unconstitutional.
What Heller Says
The Heller case involved a challenge to the District of Columbia’s ban on handguns. For the first time in nearly 70 years, the U.S. Supreme Court ruled on the meaning of the Second Amendment to the U.S. Constitution as it relates to gun control laws.
The Second Amendment provides that “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
For many years, scholars and anti-gun proponents have argued that the Second Amendment provides “a right to own guns” only in connection with service in a militia, and that this right should not extend to private individuals. That argument was roundly rejected by the Supreme Court. In an opinion authored by Justice Antonin Scalia, the Court held that the right to own a gun is not connected with service in a militia; rather, it is a personal right to own a firearm for “traditionally lawful purposes” such as self-defense within the home.
The bottom line: You have a constitutional right to possess a firearm regardless of whether you are serving in a militia. But just how far that right extends remains up in the air.
How Heller Affects Gun Control Laws
How much the ruling in Heller will affect gun control laws in various cities and states remains to be seen.
The gun control law at issue in the Heller case — a nearly across-the-board gun ban in the District of Columbia — was considered to be the strictest gun-control law in the nation. Because the Supreme Court’s ruling concerned only this strict ban on handguns, the decision leaves unclear whether less-stringent bans in other states and cities will survive constitutional challenges.
And, although the Supreme Court’s decision adopted the broader, individual-rights interpretation of the Second Amendment, the Court also made it clear that the right to own a gun continues to have a number of significant qualifications or restrictions, including:
- Not everyone can own a gun. The right does not extend to felons or the mentally ill.
- Guns cannot be carried everywhere. Laws forbidding individuals from carrying firearms in “sensitive” places, such as schools and government buildings, will probably stand.
- Certain restrictions on the sale of guns are allowed. Laws imposing conditions and qualifications on the commercial sale of firearms will most likely stand.
- Individuals do not have the right to carry certain types of guns. The right does not protect guns that are not generally owned for lawful purposes, such as short-barreled shotguns. Just what kind of handguns may be possessed is not explicitly set forth in the opinion (apart from the one specific reference to sawed-off shotguns, which are not allowed). The Court did endorse the “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,'” but did not state whether such weapons include assault weapons or semi-automatic weapons.
Given this long list of qualifications, it remains unclear how Heller will affect the many different types of gun control laws that exist in cities and states throughout the country.
New Challenges to Gun Control Laws
One thing is for sure: Advocates all over the country will now challenge gun control laws based on the Supreme Court’s ruling in Heller. Within a day of the decision, lawsuits challenging gun control laws had been filed in Chicago and San Francisco, and additional challenges are expected in New York, Philadelphia, Detroit, and countless other cities.
While gun rights advocates like the National Rifle Association hailed the Supreme Court’s decision as a welcome addition to their arsenal in the ongoing war against gun control laws, only time (and future court decisions) will tell whether the Court’s ruling marks the beginning of a comprehensive rollback of gun control restrictions in this country or is merely a symbolic ruling that will ultimately leave most of those laws in effect.
Bail: Getting Out of Jail After an Arrest
Everything you need to know about bail: what it is, how it’s set, and how to pay it.
A person’s first thought upon landing in jail is often how to get out — and fast. The usual way to do this is to “post bail”.
Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant doesn’t show up, the court may (without a lawyer to give the court an acceptable reason why the defendant has not shown up to court….”My car is broke” might work once, but not twice) keep the bail money and issue a warrant for the defendant’s arrest.
How Bail Is Set
Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to 72 hours to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. A defendant looking for a signature bond (a bond in which all a defendant needs to do is sign vouching for his or her appearance and willing to have a judgment of XXX dollars placed against him or her if they don’t show up) needs to be put in place by a judge. This is done at a “Bond Hearing”. Sometimes the judge still insists on a cash bond if the crime is serious enough or there is a significant chance that the defendant will leave jail and not come back.
The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to allow the arrested person to remain free until convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep the suspect from fleeing before a case is over. However sometimes bail amounts, as mentioned before, can reflect the severity of a crime.
So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales, rape or homicide) to keep a suspect in jail until the trial is over. Although bail set for this purpose — called preventative detention — is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).
If a defendant can’t afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing, called a “Bail Hearing” or when the defendant appears in court for the first time (usually called the initial appearance).
Bail can take any of the following forms:
- cash or check for the full amount of the bail
- property worth the full amount of the bail, or
- a waiver of payment on the condition that the defendant appear in court at the required time (commonly called “release on one’s own recognizance”).
A bail bond is like a check held in reserve: It represents the arrested person’s promise that he or she will appear in court when required. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond). This is the “Bail Bondsmen” system. Wisconsin does not have “Bail Bondsmen” system, though the legislature has entertained the idea recently..
A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require “collateral”. This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person’s valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.
Getting Out of Jail Free
Sometimes people are released “on their own recognizance,” or “O.R.” A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail. These are not that common due to Wisconsin’s well used Signature Bond system.
In Wisconsin the vast majority of defendants are released on “Signature Bonds”. As mentioned before a signature bond requires the defendant to sign a piece of paper, called the signature bond” in which they are vouching for the fact that they are going to come back to court. If not the court will enter a money judgment equaling most, if not all, the amount of the bond against the defendant.
In general, defendants who are released on signature bonds have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant a signature bond include the following:
- The defendant has family members (most likely parents, a spouse, or children) living in the community.
- The defendant has resided in the community for many years.
- The defendant has a job.
- The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
- The defendant has been charged with previous crimes and has always appeared as required.