Category Archives: Criminal Law

Eye the Jury !

Despite (perhaps) the apparent punish (ing) title of this article

museum; (c) Buckinghamshire County Museum; Supplied by The Public Catalogue Foundation

(equally apparently written while very tired late-one-night), this will not in any way concern the 1947 debut novel of American crime-fiction writer, Mickey Spillane; and, the first of his works to feature the notorious Private Investigator, Mike Hammer. No, that was “I, the Jury.” This is just me trying to get your attention. Continue reading Eye the Jury !

They’re Letting John Hinckley Go Free? What’s That All About?

First of all, we probably need to refresh some memory of just who isJohn Hinckley?

On March 30, 1981, John Warnock Hinckley tried to assassinate john_hinckley_jr-_fbi_mugshotRonald Reagan, who was then the President of the United States. As he left a Downtown Washington D.C. hotel, with a sizable entourage, including F.B.I & Secret Service constituency, Hinckey “laid-in-wait” to ambush the President and his companions. Judging from the injuries, a number of shots were apparently fired: Reagan, himself, as he was assisted for entry into his “Limo,” was hit in the side of his chest by a ricochet, that pierced to within inches of his heart. Police Officer Thomas Delahanty, Secret Service Agent Timothy McCarthy, and Press Secretary James Brady, were seriously wounded. Brady was so seriously and profoundly impacted, that his ultimate death in 2014, was attributed to the injuries he received on that day in 1981. Continue reading They’re Letting John Hinckley Go Free? What’s That All About?

Crazy, Okay, but Guilty, Anyway

The History and Legal Use of the Insanity Defense

In ancient times, insanity had no particular bearing on the question of criminal guilt. If one were to be found to have committed a crime, even a

Daniel Edward Sickles, a US Congressman at the time, was the first to successfully win a case by pleading Temporary Insanity for killing his wife's lover. He later became a Major General during the Civil War.
Daniel Edward Sickles, a US Congressman at the time, was the first to successfully win a case in the U.S. by pleading Temporary Insanity for killing his wife’s lover in 1859. He later became a Major General during the Civil War.

murder, such a one would most likely receive a guilty conviction and a punishment, even if he or she were a lunatic. However, by the mid 13th Century, it was not uncommon to find monarchs granting pardons to mentally ill persons, who had actually been convicted of homicide in a court­ of­law. Over the next several decades, such acts of grace became even more commonplace; until, by the time of the 14th Century, insanity began to be recognized as a defense to all sorts of crimes. Lives could be spared from execution; and the only other punishment that might be imposed would be that the criminal’s property could be forfeited to the victims, or the State. By the middle of that century, absolute madness had become a complete defense to a criminal charge. However, as time went on, and into the next century and beyond, the tension between a persistent need to conform to the integrity of legal analysis, continued to increase; and often in the face of what was often seen as mere sentimentality and emotion.

Nevertheless, the assault upon strict application of the law by way of graceful impulse, continued to manifest itself; including, by way of a proposition of a scientific underpinning for the idea that insanity should be a defense to conviction of a crime. It ultimately became maintained by the best of the scholars, that insanity could actually deprive a person of the ability to entertain a sufficient mental state, otherwise necessary for the conviction of even the simplest crime, let alone one so heinous as to constitute a finding of guilt for murder. That is because of the basic legal principle that criminal guilt can only result from the performance of an act for which there is a prescribed punishment.

Furthermore, it shall also be found, that there must be a concurrence of such a forbidden evil act (actus reus), with an equally evil state of mind (mens rea), for a crime to be found to have been committed. Furthermore, if one should be found to have been so mentally deficient at the time of the doing of an otherwise criminal act, that it would have been impossible for him or her to formulate and entertain a sufficiently evil state of mind while performing the act, it would therefore be impossible for such a person to be found liable for any crime, let alone a murder. By this time in our history, every State in the Union has a specific law for the purpose of an insanity defense. The most common of all of them requires, that for an accused to establish a defense on the grounds of insanity, it must be clearly proved that, at the time of the committing of the act, such a person was incapable of knowing or understanding the nature and quality of his or her act, and of distinguishing whether it was right or wrong.

Do The Police Need a Warrant To Search Contents On Your Mobile Device?

Recent Supreme Court ruling reinforces protection under the 4th Amendment.

You’re casually driving through town when you see what appears to be the dreaded flashing lights of a law enforcement vehicle through your rear-view mirror. You Law Offices of William R. Livelydutifully (but safely) pull over, only to be accused of driving while texting.

“But no, officer. I know the laws, and would never do something like this.”

The polite but firm official offers a solution: He asks for access to your mobile device to prove you weren’t texting while driving.

What might your options be in this situation?

To be clear in this hypothetical scenario, we said that the officer ASKS  you for your mobile device. He’s using a version of “probable cause” in an effort to prove, or disprove, your innocence. Now there are some establishing guidelines for probable cause, such as the officer witnessing what may have appeared to be your making motions while driving that could be interpreted as using your mobile device to send a text message (Which is against the law in California). Were this the case, the officer can attempt to establish probable cause to initiate a search without a warrant.  Continue reading Do The Police Need a Warrant To Search Contents On Your Mobile Device?

But He Was In MY House!

Are there legal limits in the defense of yourself and your property?

Hey, what about the one where the guy offers as an excuse for having killed someone with a shotgun, that he caught the dead guy in his garage trying to steal his drug Are there legal limits to self defense?stash? Now, this is not a case about a small amount of so-called “medicinal marijuana,” it’s a case about a rather large amount of illegal pot for sale. The homeowner was so afraid he would be “ripped off,” that he installed cameras to detect any intruders. Sure enough, he saw one on the screen one night, and then went into the garage to blow the guy away.

We have a number of discussions about ongoing developments in the law of self defense. Basically, anyone threatened by imminent physical harm is entitled to use a reasonable amount of force to prevent that harm. However, some states may require a defender to “retreat-to-the-wall” before using any deadly force. On the other hand, we’re recently familiar with states that permit a “Stand Your Ground” opportunity to a defender; reasoning that if once is in a place he’s entitled to be, he shouldn’t have to run anywhere.  Continue reading But He Was In MY House!

But I’m Not Drunk!!!

Driving Under The Influence Has Little To Do With HOW MUCH You’ve Had To Drink

All too often I get calls from people who have been arrested for “DUI” (Driving Under the Influence), and many of those people protest that they were not “drunk.” I have to California DUI law informationtell those people that it is unnecessary for someone to be drunk, in order to be convicted of the crime. The particular law that is involved, Section 23152 of the Vehicle Code, has an “A” and a “B” subsection. The “A” subsection would intend that a person would be found guilty if they were driving under the influence of a drug, alcohol, or a combination of both; and to an extent that their ability to safely operate a motor vehicle was impaired.

The “A’s” and “B’s” Of Drunk Driving

 

During the stop of a driver suspected of being “under the influence,” law enforcement will most often administer both athletic and mental tests to a suspected driver, in order to determine a level of impairment. Chemical tests of bodily fluids might follow. While even the slightest amount of alcohol can be enough to convict some people, there are those who perform better than others, when they have been drinking. That’s why the “B” section of the law was added to the statute. The “B” section would make a person guilty, regardless of their performance during a field sobriety test (“FST”), if they’re “Blood Alcohol Level”would be a 0.8%, or higher. Continue reading But I’m Not Drunk!!!

Great Guns! The Legality of Our Constitutional Rights

The United States Constitution Is Not Firm and Unchangeable

Before we can begin to discuss this next legal principle, we have to rid ourselves of the idea that our American Constitution, let alone the Laws that are founded upon it,  is a The United States Constitution and Gun Rightsfirm and unchangeable document.  The truth of our history is, that our Laws, and the interpretation of our Constitution, change over time; and with the spirit of the times.  That being said, it’s fair to say, that the current (and recently changed) position of our United States Supreme Court, on the proper interpretation of our Second Amendment, is that individuals do have a constitutional right to personally keep and bear firearms.

Just What Are Our Constitutional Rights?

Now, this is somewhat of a change in the relatively recent interpretation of our law.  Previously, opinions have sought to persuade that the thrust of the “right” to possess firearms, really concerned the rights of States to have militias, like the national guard; and not the rights of individual persons to own and possess guns for personal use.  Another thing that will be important to realize, is that when a right is found in the first ten amendments of the Constitution ( the “Bill of Rights”), such a”Right” will be of particular importance and strength; at least in terms of the fact that, if the “right” is going to be somewhat ignored or modified by any government, it will have to be for a  very “compelling” reason.  None of the “Rights” are so important that they can’t be changed, if there is a compelling reason for doing so.  For instance, there is no “Right” more basic, and even as sacred, as the Right of Freedom of Speech; but according to the opinion of a Supreme Court Justice, in an actual case on the subject, the First Amendment will not go so far as to protect a person who would yell “fire” in an open theater, when there would be no fire.

Is There a Limit To Our Constitutional Rights?

Our Supreme Court, just about the turn to the 20th Century, found that the sacred Right of Religious Freedom, did not extend to a right to engage in plural marriage.  Another thing to keep in mind, is the fact that, even in the case of these most important and fundamental rights, the courts and legislatures will still have the power to modify and otherwise regulate the “time, place and manner” of the exercise of these most important rights.   For instance, even local governments will be found to have the power to prevent unregulated animal sacrifice, and other burnt offerings, in the name of religious freedom.

Now, with these principles in mind, it’s now possible to conclude, that even though a right, like personal possession of a gun, is a very established and protected Constitutional Right, it will be subject to regulation.  For instance, the right to “keep and bear” a firearm, might be modified to require that the weapon not be carried as a concealed weapon; or even transported in a motor vehicle.  Perhaps the “time” of possession might prohibit possession in a court house, a church, or even outside of one’s home —- except, perhaps, on a hunting trip, for instance.  It will still be left to the courts to determine whether the possession and use of certain types and designs of firearms can be regulated.

There doesn’t seem to be much resistance to the idea that one should not be allowed to possess, let alone use, high caliber automatic weapons, like machine guns; or things like cannons and rockets; but, how many bullets can be contained in a “clip” for a semi-automatic weapon; or the caliber and velocity of certain weapons, are likely to be questions that will be commonly considered in the not too distant future.

Stand Your Ground!

There’s a lot of misinformation out there about the so-called  “Stand-Your-Ground Rule.”  A great deal of the misinformation is from the media, which should know better.

Some of the misinformation is the assertion that the “Stand-Your-Ground Rule” is one of radical and recent origin; and confined to one particular state, being the state of Florida.  However, the rule is older than our republic itself; and will be found to have been part of the English common law, that was actually adopted by the thirteen American colonies, before we even had our own Constitution.

The rule most commonly comes up in relationship to that form of self-defense, which involves the use of force in one’s defense; and most especially, the use of  “deadly force”, as opposed to “non-deadly force”.

Generally,  it’s almost universally true in our culture, that one is entitled to use that degree of reasonable force, necessary to defend one’s self  As long as the force is “reasonable” under the circumstances, the defender should be viewed as being involved in self-defense, as a privileged activity   —– but that’s just where the problem lies:    just exactly what is “reasonable” force, under a particular circumstance?

If the amount of force that is utilized by the defender is greater than the force utilized in the attack on the defender, the question might arise as to whether the force is reasonable under the circumstances; and specifically, whether the defender has become an aggressor (by the use of excessive or unreasonable force); and therefore punishable under the Law.

It could be said, that the so-called  “Stand-Your-Ground Rule”, is a contradiction of an older and more pervasive rule, known as the “Retreat Rule”.  Generally, the “Retreat-Rule” demands that one should all available means of escape, before using any force at all, in self-defense.  While it is true that the “Retreat Rule” is rare in such an extreme form; it’s equally true, that when the defensive force might become “extreme” or “deadly force,” it would be required that the defender use any reasonably available avenues of escape, to avoid serious injury,

In the final analysis, the “Stand-Your-Ground-Rule” could be said to stem from a philosophical response to the question of self-defense.  The Rule reasons, that if one is in a place where the one has a right to be, there should be no requirement to “move an inch,” in response to an unprovoked attack,  let alone, “retreat-to-the-wall.”

In deed, that is in fact the law in some jurisdictions; where one would be entitled to use injurious, and even deadly force, if it is demanded that the one must move from a place the defender merely has a right to be.

Now, and even if it is not the majority rule in the country, if a particular state should determine by a democratic vote of its legislature, that it will adopt a law such as the “Stand-Your-Ground Rule.” it would be free to do so, absent a Federal Constitutional conflict.

As far as the State of California is concerned, deadly force would be deemed unreasonable, if non-deadly force would be obviously sufficient to avert a threatened harm. Even non-deadly force would be unreasonable, if it were obviously and substantially in excess of what would be needed for the particular defense.

Hey, We Finally Got a Date of Separation!

Hey, We Finally Got a Date of Separation!So long, farewell, auf wiedersehen, good night... Back in early April of 2016, we had an Article in this space, where we asked, “How Many Degrees to a Date [more]

Eye the Jury !

Eye the Jury !Despite (perhaps) the apparent punish (ing) title of this article (equally apparently written while very tired late-one-night), this will not in any way [more]

They’re Letting John Hinckley Go Free? What’s That All About?

They’re Letting John Hinckley Go Free? What’s That All About?First of all, we probably need to refresh some memory of just who isJohn Hinckley? On March 30, 1981, John Warnock Hinckley tried to assassinate Ronald [more]

There's More To Grandparents' Rights Than Meets The Eye

There's More To Grandparents' Rights Than Meets The EyeFLASH!!   The worm turns again; only this time, it’s a Grandpa Worm! Have I got your attention?  A number of times in this series of articles, it has been [more]

How Many Degrees To a Date Of Separation?

How Many Degrees To a Date Of Separation?The Date of Separation is something that has to be decided before there can be any Judgment that finally dissolves a Marriage in the State of [more]

This One's For The Children

This One's For The ChildrenThe Importance Of a "Parenting Plan" If a Court should encounter a Dissolution of Marriage Petition involving Minor Children, the Law would prefer that the [more]

Are There Limits To Your Constitutional Rights?

Are There Limits To Your Constitutional Rights?An Exceptional Concept... Our U.S. Constitution specifically includes the reservation of certain precious and fundamental rights to particular individuals and [more]

What The Heck Happened? Creating a Timeline For Your Legal Counsel

What The Heck Happened? Creating a Timeline For Your Legal CounselIf one should have a problem that could lead to a visit with a lawyer for legal advice about that problem, there would be a few important things to remember for [more]

What You Need To Know About Prenuptial Agreements

What You Need To Know About Prenuptial AgreementsWhose Stuff Is It, Anyway? With a couple of notable exceptions, California Law will presume that any property acquired by either of the spouses in a valid [more]

Crazy, Okay, but Guilty, Anyway

Crazy, Okay, but Guilty, AnywayThe History and Legal Use of the Insanity Defense In ancient times, insanity had no particular bearing on the question of criminal guilt. If one were to be [more]

King Solomon Said 'Cut 'em in Half!' The Court Says Otherwise

King Solomon Said 'Cut 'em in Half!' The Court Says OtherwiseThe Best Interests Of The Children In these days, when our courts and legislatures seem to be taking the view that the Dissolution of a Marital Relationship in [more]

He Left Without Saying Goodbye! Now What Do I Do?

He Left Without Saying Goodbye! Now What Do I Do?Can't Wait. I have bills to pay and no way to pay them! A circumstance that would be of particular concern for a Family Law Court, would be one where one party [more]

The Dissolution of a Marriage in the State of California

The Dissolution of a Marriage in the State of CaliforniaDefining definite differences in the definition of divorce. The Dissolution of a Marriage in the State of California is something that has to happen by and [more]

A Trust Is a Must

A Trust Is a MustWorking Your Way Around The Red Tape of Probate Could it be possible to avoid probate altogether, including; all the Probate Court filings and appearances; the [more]

Where There's a Will, There's a (Better) Way

Where There's a Will, There's a (Better) WayIs there a way to have your estate handled without everyone else getting an administrative "piece of the pie?" The idea of a Will is literally thousands of [more]