https://defensewiki.ibj.org/api.php?action=feedcontributions&feedformat=atom&user=Eeichler 2026-04-25T21:19:30Z User contributions MediaWiki 1.42.1 https://defensewiki.ibj.org/index.php?title=Right_to_Impartial_Judge&diff=5632 2010-08-13T14:09:13Z

<p>Eeichler: </p> <hr /> <div>==Background==<br /> The judge holds enormous power in both civil law and common law criminal justice systems. Because this power is disproportionately large compared to both the criminal defense lawyer and the prosecutor, a defendant has the right to trial by an impartial and unbiased judge.<br /> <br /> ==United States==<br /> <br /> In Tumey v. Ohio, the Supreme Court explained why it is important for judges to be impartial:<br /> <br /> &lt;blockquote&gt;&quot;[I]t certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct personal, substantial pecuniary interest in reaching a conclusion against him in his case&quot;&lt;Ref&gt; Tumey v. Ohio, 273 U.S. 510 (1927)&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> A defendant may challenge a biased judge for cause. Generally, each state will promulgate rules laying out the exact grounds for a defendant's challenge of a judge for cause. If the matter requires a hearing, the hearing should be conducted by a second judge who has no interest in the outcome of the potential recusal.<br /> <br /> A judge also has the responsibility to take affirmative action to remove the appearance of impropriety or bias. The judge should not rely on the defendant to raise the issue of impartiality.<br /> <br /> Several states also permit a &quot;peremptory challenge&quot; without a showing of bias.<br /> <br /> ----<br /> See [[Rights of the Accused]]<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Brady_Material&diff=5630 2010-08-13T12:34:17Z

<p>Eeichler: </p> <hr /> <div>==Background==<br /> In Brady v. Maryland,&lt;ref&gt;Brady v. Maryland, 373 U.S. 83 (1963)&lt;/ref&gt; the United States Supreme Court concluded that a defendant was entitled to material and exculpatory material that the prosecution possessed. Because of this case, both public defenders and criminal justice officers refer to this as &quot;Brady Material&quot; or &quot;The Brady Rule.&quot;<br /> <br /> The court cited Solicitor General Judge Simon E. Sobeloff who put the idea as follows in an address before the Judicial Conference of the Fourth Circuit on June 29, 1954:<br /> <br /> &lt;blockquote&gt;&quot;The Solicitor General is not a neutral; he is an advocate, but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory, but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the government wins its point when justice is done in its courts.&quot;&lt;Ref&gt;See Dennis, Maryland's Antique Constitutional Thorn, 92 U. of Pa.L.Rev. 34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice be Continued, 60 Md.St.Bar Assn.Rept. 246, 253 254.&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> ==Brady Material==<br /> Brady Material is any evidence which, if believed, would be favorable to the defendant.&lt;ref&gt;United States v. Bagley, 427 U.S. 97 (1976)&lt;/Ref&gt;.<br /> <br /> It includes at least three types of evidence<br /> *'''Exculpatory Evidence''' - Evidence which would tend to make an affirmative demonstration of the defendant's innocence or negate evidence of guilt.<br /> *'''Mitigation Evidence''' - Evidence which would reduce the degree of guilt from one class of crimes to another (for instance, from first degree murder to voluntary manslaughter) or would in some other way reduce the defendant's sentence.<br /> *'''Impeachment Evidence''' - Evidence that diminishes the credibility of a prosecution or defense witness. This includes any deals made between the prosecutor and a witness.&lt;ref&gt;Giglio v. United States, 405 U.S. 150 (1972)&lt;/ref&gt;<br /> <br /> ==Materiality under Brady==<br /> <br /> In United States v. Bagley &lt;ref&gt; United States v. Bagley, 473 U.S. 667 (1985)&lt;/Ref&gt; the Supreme Court concluded that a defendant's conviction should be reversed if the prosecutor failed to turn over &quot;Brady Material&quot; and there is a &quot;reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.&quot; In 1999, the Supreme Court summarized the Bagley Rule as having three elements:&lt;ref&gt;Stickler v. Greene, 527 U.S. 263 (1999)&lt;/ref&gt;<br /> #The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching<br /> #That evidence must have been suppressed by the State, either willfully or inadvertently<br /> #Prejudice must have ensued.<br /> <br /> ==Prosecutor's Duty under Brady==<br /> <br /> Because the prosecutor represents the entire government, she has a duty to learn of any favorable evidence known to other government agencies. Once all this material has been collected, the prosecutor must make a determination as to whether any piece of evidence alone, or in conjunction with other evidence, requires disclosure.<br /> <br /> ==Brady Material and Police Misconduct==<br /> One issue which still appears unresolved is whether the prosecution has a duty to disclose prior police misconduct as &quot;Brady Material.&quot; Proponents of this kind of discovery contend that if the defense raises police misconduct as a defense to a crime, prior bad conduct of the officer becomes material and exculpatory as impeachment evidence. <br /> <br /> Opponents contend that permitting extensive discovery from the police officer's personal file would violate the officer's right to privacy and distract the court from the determination of guilt or innocence by turning the proceedings into a test of the officer's credibility.<br /> <br /> Many states, such as California, permit limited &quot;in camera&quot; review of an officer's private personal file. The judge will then make a determination as to whether any evidence inside is material and exculpatory. When the evidence is released, it is sometimes done under a protective order.<br /> <br /> ----<br /> See [[Ethics and Professional Responsibility]], [[Discovery]].<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Brady_Material&diff=5629 2010-08-13T12:28:00Z

<p>Eeichler: </p> <hr /> <div>==Background==<br /> In Brady v. Maryland,&lt;ref&gt;Brady v. Maryland, 373 U.S. 83 (1963)&lt;/ref&gt; the United States Supreme Court concluded that a defendant was entitled to material and exculpatory material that the prosecution posssed. Because of this case, both public defenders and criminal justice officers refer to this as &quot;Brady Material&quot; or &quot;The Brady Rule.&quot;<br /> <br /> The court cited Solicitor General Judge Simon E. Sobeloff who put the idea as follows in an address before the Judicial Conference of the Fourth Circuit on June 29, 1954:<br /> <br /> &lt;blockquote&gt;&quot;The Solicitor General is not a neutral; he is an advocate, but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory, but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.&quot;&lt;Ref&gt;See Dennis, Maryland's Antique Constitutional Thorn, 92 U. of Pa.L.Rev. 34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice be Continued, 60 Md.St.Bar Assn.Rept. 246, 253 254.&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> ==Brady Material==<br /> Brady Material is any evidence which, if believed, would be favorable to the defendant.&lt;ref&gt;United States v. Bagley, 427 U.S. 97 (1976)&lt;/Ref&gt;.<br /> <br /> It includes at least three types of evidence<br /> *'''Exculpatory Evidence''' - Evidence which would tend to make an affiramtive demonstration of the defendant's innocence or negate evidence of guilt.<br /> *'''Mitigation Evidence''' - Evidence which would reduce the degree of guilt from one class of crimes to another (for instance, from 1st degree murder to voluntary manslaughter) or would in some other way reduce the defendant's sentence.<br /> *'''Impeachment Evidence''' - Impeachment evidence is evidence that diminishes the credibility of a prosecution or defense witness. This includes any deals made between the prosecutor and a witness.&lt;ref&gt;Gigilo v. United States, 405 U.ls. 150 (1972)&lt;/ref&gt;<br /> <br /> ==Materiality under Brady==<br /> <br /> In United States v. Bagley &lt;ref&gt; United States v. Bagley, 473 U.S. 667 (1985)&lt;/Ref&gt; the Supreme Court concluded that a defendant's conviction should be reversed if the prosecutor failed to turn over &quot;Brady Material&quot; and there is a &quot;reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.&quot; In 199, the Supreme Court summarized the Bagley Rule as having three elements:&lt;ref&gt;Stickler v. Greene, 527 U.S. 263 (1999)&lt;/ref&gt;<br /> #The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching<br /> #That evidence must have been suppressed by the State, either willfully or inadvertently<br /> #Prejudice must have ensued.<br /> <br /> ==Prosecutor's Duty under Brady==<br /> <br /> Because the prosecutor represents the entire government, she has a duty to learn of any favorable evidence known to other government agencies. Once all this material has been collected, the prosecutor must make a determination as to whether any piece of evidence alone, or in conjunction with other evidence, requires disclosure.<br /> <br /> ==Brady Material and Police Misconduct==<br /> One issue which still appears unresolved is whether the prosecution has a duty to disclose prior police misconduct as &quot;Brady Material&quot;. Proponents of this kind of discovery contend that if the defense raises police misconduct as a defense to a crime, prior bad conduct of the officer becomes material and exculpatory as impeachmetn evidence. <br /> <br /> Opponents contend that permitting extensive discovery from the police officer's personal file would violate the officer's right to privacy and distract the court from the determination of guilty or innocence by turning the proceedings into a test of the officer's credibility.<br /> <br /> Many states, such as California, permit limited &quot;in camera&quot; review of an officer's private personal file. The judge will then make a determination as to whether any evidence inside is material and exculpatory. When the evidence is released, it is sometimes done under a protective order.<br /> <br /> ----<br /> See [[Ethics and Professional Responsibility]], [[Discovery]].<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Brady_Material&diff=5628 2010-08-13T12:27:46Z

<p>Eeichler: </p> <hr /> <div>==Background==<br /> In Brady v. Maryland, &lt;ref&gt;Brady v. Maryland, 373 U.S. 83 (1963)&lt;/ref&gt; the United States Supreme Court concluded that a defendant was entitled to material and exculpatory material that the prosecution posssed. Because of this case, both public defenders and criminal justice officers refer to this as &quot;Brady Material&quot; or &quot;The Brady Rule.&quot;<br /> <br /> The court cited Solicitor General Judge Simon E. Sobeloff who put the idea as follows in an address before the Judicial Conference of the Fourth Circuit on June 29, 1954:<br /> <br /> &lt;blockquote&gt;&quot;The Solicitor General is not a neutral; he is an advocate, but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory, but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.&quot;&lt;Ref&gt;See Dennis, Maryland's Antique Constitutional Thorn, 92 U. of Pa.L.Rev. 34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice be Continued, 60 Md.St.Bar Assn.Rept. 246, 253 254.&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> ==Brady Material==<br /> Brady Material is any evidence which, if believed, would be favorable to the defendant.&lt;ref&gt;United States v. Bagley, 427 U.S. 97 (1976)&lt;/Ref&gt;.<br /> <br /> It includes at least three types of evidence<br /> *'''Exculpatory Evidence''' - Evidence which would tend to make an affiramtive demonstration of the defendant's innocence or negate evidence of guilt.<br /> *'''Mitigation Evidence''' - Evidence which would reduce the degree of guilt from one class of crimes to another (for instance, from 1st degree murder to voluntary manslaughter) or would in some other way reduce the defendant's sentence.<br /> *'''Impeachment Evidence''' - Impeachment evidence is evidence that diminishes the credibility of a prosecution or defense witness. This includes any deals made between the prosecutor and a witness.&lt;ref&gt;Gigilo v. United States, 405 U.ls. 150 (1972)&lt;/ref&gt;<br /> <br /> ==Materiality under Brady==<br /> <br /> In United States v. Bagley &lt;ref&gt; United States v. Bagley, 473 U.S. 667 (1985)&lt;/Ref&gt; the Supreme Court concluded that a defendant's conviction should be reversed if the prosecutor failed to turn over &quot;Brady Material&quot; and there is a &quot;reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.&quot; In 199, the Supreme Court summarized the Bagley Rule as having three elements:&lt;ref&gt;Stickler v. Greene, 527 U.S. 263 (1999)&lt;/ref&gt;<br /> #The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching<br /> #That evidence must have been suppressed by the State, either willfully or inadvertently<br /> #Prejudice must have ensued.<br /> <br /> ==Prosecutor's Duty under Brady==<br /> <br /> Because the prosecutor represents the entire government, she has a duty to learn of any favorable evidence known to other government agencies. Once all this material has been collected, the prosecutor must make a determination as to whether any piece of evidence alone, or in conjunction with other evidence, requires disclosure.<br /> <br /> ==Brady Material and Police Misconduct==<br /> One issue which still appears unresolved is whether the prosecution has a duty to disclose prior police misconduct as &quot;Brady Material&quot;. Proponents of this kind of discovery contend that if the defense raises police misconduct as a defense to a crime, prior bad conduct of the officer becomes material and exculpatory as impeachmetn evidence. <br /> <br /> Opponents contend that permitting extensive discovery from the police officer's personal file would violate the officer's right to privacy and distract the court from the determination of guilty or innocence by turning the proceedings into a test of the officer's credibility.<br /> <br /> Many states, such as California, permit limited &quot;in camera&quot; review of an officer's private personal file. The judge will then make a determination as to whether any evidence inside is material and exculpatory. When the evidence is released, it is sometimes done under a protective order.<br /> <br /> ----<br /> See [[Ethics and Professional Responsibility]], [[Discovery]].<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Open_File_Discovery&diff=5627 2010-08-13T12:21:18Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Open_File_Discovery&diff=5626 2010-08-13T12:19:45Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Discovery&diff=5625 2010-08-13T12:12:30Z

<p>Eeichler: </p> <hr /> <div>==Background==<br /> Discovery is the process by which the prosecutor, court investigator, judge and defendant share information. The purpose of discovery is to eliminate &quot;trial by surprise,&quot; increase efficiency in court proceedings by focusing the trial on the factual disputes between parties, and produce fairer and more accurate outcomes.<br /> <br /> Opponents have argued that increased discovery provides the material and the incentive for defendants to custom tailor their testimony to the prosecution's evidence and would give defendants the opportunity to harass potential witnesses in advance of trial.<br /> <br /> ==Discovery in Civil Law Systems==<br /> Discovery in the civil law systems is dramatically simplified in comparison to the hodgepodge of common law rules associated with common law jurisdictions such as the [[United States]]. In France, for instance, the defense attorney may review the entire &quot;dossier&quot; during several phases of the investigatory stage of the criminal justice proceedings. Although the exact rules on when a defendant can review the dossier varies in France depending on the court, the general rule is that the defense may review the entire file prior to trial.<br /> <br /> ==Discovery in Common Law Systems==<br /> <br /> Prior to the 1930s, pre-trial discovery was rarely ordered by the courts and only came about by agreement of the prosecution and the criminal defense attorney. However, after the 1930s many states began to fashion discovery statutes which provided for compulsory discovery measures. These statutes, which borrowed heavily from civil law discovery procedures, provide for discovery from both the prosecution and the defense.<br /> <br /> Originally discovery procedures were advocated by defense attorneys who argued that due process required some discovery because the prosecution had an unfair advantage in investigating, due to his access to police and other state resources. However, as discovery expanded, prosecutors began to argue that discovery should go both ways. Today there are discovery procedures that both sides must comply with and in some jurisdictions there is even [[Open File Discovery]].<br /> <br /> Depositions, long a staple of civil disputes in the common law system, are still rarely used in common law criminal justice systems. However, some states, such as Indiana, still permit both the defense and the prosecution to depose witnesses in advance of trial. All states retain depositions as a tool that may be used in order to preserve testimony of an individual who may not be available at trial.<br /> <br /> ===Defendant's Discovery Obligations===<br /> In Williams v. Florida&lt;Ref&gt;Williams v. Florida, 399 U.S. 78 (1970)&lt;/Ref&gt; the United States Supreme Court upheld a statute which required defense attorneys to provide notice of an alibi defense upon written demand of the prosecution. The defendants had argued that the statute was unconstitutional because it violated the defendant's privilege against self-incrimination and foreclosed a legitimate defense if the defendant failed to comply with the discovery.<br /> <br /> Following is a list of some of the types of discovery obligations that may exist in a common law system. It is important to note that exact discovery requirements vary from state to state. <br /> <br /> *'''Alibi Notice'''- These provisions require the defendant to provide notice of an alibi defense prior to trial. Failure to disclose the defense may lead to the exclusion of witnesses who would testify in support of the alibi. If the statute fails to include a reciprocal discovery provision by the prosecution which requires the prosecutor to disclose his rebuttal witnesses, the statute may violate due process.&lt;ref&gt; Wardius v. Oregon, 212 U.S. 470 (1974)&lt;/ref&gt;<br /> *'''Insanity Defense''' - Defense may be required to disclose their intention to use the insanity defense in advance of trial. After doing so, the defendant may be required to submit to a psychiatric evaluation.<br /> <br /> ===Prosecution's Discovery Obligations===<br /> *'''Exculpatory Material'''- Due Proces requires that a prosecutor disclose material, exculpatory evidence that would either prove the defendant's innocence, mitigate the level of culpability, or otherwise favorably impact the defendant's case. In the United States, this material is sometimes called [[Brady Material]]<br /> *'''Witness Lists''' - The prosecution may be required to disclose a list with the names and addresses of potential witnesses at trial.<br /> '''Witness Statements''' - The prosecution may be required to disclose any written or recorded witness statements collected during its investigation.<br /> *'''Defendant's Statements''' - In most jurisdictions the prosecution is required to disclose any statements by the defendant, written or oral, regardless of whether they are exculpatory in nature.<br /> *'''Criminal Records''' - Prosecution may be required to disclose the defendant's own criminal record.<br /> *'''Scientific Reports''' - Prosecution may be required to disclose scientific reports produced by experts, regardless of whether those reports are in fact going to be used at trial.<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Criminal_Defense_Wiki:General_disclaimer&diff=4978 2010-07-29T07:57:44Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Criminal_Defense_Wiki:General_disclaimer&diff=4977 2010-07-29T07:56:56Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4972 2010-07-27T12:06:51Z

<p>Eeichler: /* Expert Testimony */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4971 2010-07-27T12:05:55Z

<p>Eeichler: /* Sample Jury Instructions */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4970 2010-07-27T12:05:27Z

<p>Eeichler: /* Sample Jury Instructions */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4969 2010-07-27T12:04:42Z

<p>Eeichler: /* Sample Jury Instructions */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4968 2010-07-27T12:02:13Z

<p>Eeichler: /* Composite Sketch */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4967 2010-07-27T11:55:59Z

<p>Eeichler: /* Recommended Police Guidelines for Lineup and Photo Arrays */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4966 2010-07-27T11:25:40Z

<p>Eeichler: /* Showup */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4965 2010-07-27T11:21:25Z

<p>Eeichler: /* Procedures for Challenging Identification Procedures */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4964 2010-07-27T11:17:56Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4963 2010-07-27T11:17:09Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Showups,_Lineups,_and_Photo_Arrays&diff=4962 2010-07-27T11:12:05Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Marital_Confidences_and_Spousal_Testimonial_Privileges&diff=4961 2010-07-27T11:04:58Z

<p>Eeichler: /* Spousal Testimonial Privilege */</p> <hr /> <div>Spouses may be able to claim two separate privileges that protect them from testifying at trial: the marital confidences privilege and the spousal testimonial privilege.<br /> <br /> ==Marital Confidences Privilege==<br /> The marital confidences privilege is a form of privileged communication protecting the contents of confidential communications between a married couple. Sometimes referred to as the marital communications privilege, it is based on the policy of encouraging spousal harmony, and preventing people from having to condemn, or being condemned by, their spouses. The privilege may be invoked in either criminal or civil proceedings. The marital confidences privilege only applies to communications made during marriage and cannot be invoked for communications before marriage, or after divorce. The privilege survives divorce so one spouse may prevent an ex-spouse from testifying.<br /> <br /> The elements of the marital confidences privilege are as follows:<br /> #Confidential communication<br /> #Between married people<br /> #Relating to the marriage (only some courts apply this third prong)<br /> <br /> Thus, the privilege may be broken if either of the first two elements is lacking. For instance, if the confidential communication is disclosed to a third party the confidentiality will be broken. In order for the confidential communication prong to be proven, both spouses must intend the communication to be confidential.<br /> <br /> ==Spousal Testimonial Privilege==<br /> The spousal testimonial privilege is also based on the policy of encouraging spousal harmony. This privilege permits a spouse to refuse to testify in a criminal proceeding against his or her spouse. The testifying spouse holds this privilege and the defendant spouse may not claim the privilege on behalf of an existing spouse. The privilege ceases to exist when the marriage is terminated.<br /> <br /> The elements of the spousal testimonial privilege are as follows:<br /> #Existing marriage<br /> #Criminal case against spouse<br /> #Spouse is called to testify<br /> <br /> ==Exceptions to these privileges==<br /> In certain actions such as domestic abuse or child abuse, the court will not permit one spouse to use either privilege against another spouse.<br /> <br /> <br /> ----<br /> See [[Evidence]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Marital_Confidences_and_Spousal_Testimonial_Privileges&diff=4960 2010-07-27T11:03:56Z

<p>Eeichler: /* Marital Confidences Privilege */</p> <hr /> <div>Spouses may be able to claim two separate privileges that protect them from testifying at trial: the marital confidences privilege and the spousal testimonial privilege.<br /> <br /> ==Marital Confidences Privilege==<br /> The marital confidences privilege is a form of privileged communication protecting the contents of confidential communications between a married couple. Sometimes referred to as the marital communications privilege, it is based on the policy of encouraging spousal harmony, and preventing people from having to condemn, or being condemned by, their spouses. The privilege may be invoked in either criminal or civil proceedings. The marital confidences privilege only applies to communications made during marriage and cannot be invoked for communications before marriage, or after divorce. The privilege survives divorce so one spouse may prevent an ex-spouse from testifying.<br /> <br /> The elements of the marital confidences privilege are as follows:<br /> #Confidential communication<br /> #Between married people<br /> #Relating to the marriage (only some courts apply this third prong)<br /> <br /> Thus, the privilege may be broken if either of the first two elements is lacking. For instance, if the confidential communication is disclosed to a third party the confidentiality will be broken. In order for the confidential communication prong to be proven, both spouses must intend the communication to be confidential.<br /> <br /> ==Spousal Testimonial Privilege==<br /> The spousal testimonial privilege is also based on the policy of encouraging spousal harmony. This privilege permits a spouse to refuse to testify in a criminal proceeding against their spouse. The testifying spouse holds this privilege and the defendant spouse may not claim the privilege on behalf of an existing spouse. The privilege ceases to exist when the marriage is terminated.<br /> <br /> The elements of the spousal testimonial privilege are as follows:<br /> #Existing marriage<br /> #Criminal case against spouse<br /> #Spouse is called to testify<br /> <br /> ==Exceptions to these privileges==<br /> In certain actions such as domestic abuse or child abuse, the court will not permit one spouse to use either privilege against another spouse.<br /> <br /> <br /> ----<br /> See [[Evidence]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Competency_to_Testify&diff=4959 2010-07-27T10:55:37Z

<p>Eeichler: /* Dead Man&#039;s Statute */</p> <hr /> <div>==Background==<br /> At common law atheists, children, the mentally impaired, convicted felons, accomplices, parties, parties' spouses and other interested persons were considered incompetent to testify because these witnesses could either 1) not be trusted to respect the oath or 2) had an interest in the proceedings. Today most of these witnesses can testify, subject to some limitations.<br /> <br /> ==Competency Today==<br /> As a general rule, most witnesses are presumed to be competent and able to give testimony at a trial. However, competency may be tested for each individual witness. In the U.S. Federal Courts, competency is determined on a case-by-case basis. <br /> <br /> General requirements for competency:<br /> *'''Oath or Affirmation''' - In many courts every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. If the individual does not understand the oath or affirmation, then they may be incompetent to testify.&lt;ref&gt;Federal Rules of Evidence - Rule 603. Oath or Affirmation&lt;/ref&gt;<br /> *'''Knowledge''' - A witness is only competent to testify if they have personal knowledge of the facts to which they will testify. &lt;ref&gt;Federal Rules of Evidence - Rule 602. Lack of Personal Knowledge&lt;/ref&gt;<br /> <br /> Competency to testify merely acts as a gatekeeper function keeping certain unreliable witness out of court. That is to say, a competent witness is not automatically reliable or material. A trier of fact (judge or jury) may still discount the testimony as weightless.<br /> <br /> ==Mentally Disabled==<br /> If there is a question of mental disability, it is the duty of the opposing counsel to raise the issue of the competency of the adult. If one party raises the question of a witness's competency to testify, the court may order a hearing, during which:<br /> #The witness must answer questions as to their ability to tell the truth<br /> #The witness is asked whether he or she understands what an oath or affirmation is.<br /> #The witness is examined to determine whether he or she understands the duty to speak the truth in terms of everyday social conduct.<br /> At the end of the hearing, the judge will determine whether the witness is competent to testify. The burden of proof is on the opposing party to prove incompetence.<br /> <br /> ==Children==<br /> The rules for children are similar to those for the mentally disabled. However, if a child is very young they may be presumed to be incompetent to testify. For instance, in Canada a child is presumed to be incompetent if they are under the age of 14.<br /> <br /> If a child is presumed to be incompetent under local evidence law, the lawyer may still attempt to prove competency by overcoming:<br /> #The concern that children are easily influenced and suggestible.<br /> #The presumption that a child cannot understand the moral obligation to tell the truth.<br /> <br /> Even if the evidence is admissible, the trier of fact does not have to give the evidence much weight.<br /> <br /> ==Spouses==<br /> <br /> Depending on the jurisdiction, spouses may be incompetent to testify against one another in a criminal case. In the U.S. Federal Courts this common law rule was abolished with the advent of the Federal Rules of Procedure. However, some states retain a version of the spousal incompetence rule. For instance, in New York one spouse may be incompetent to testify against another spouse if the issue is adultery. &lt;ref&gt; New York Civil Practice Law and Rules 4502&lt;/ref&gt;<br /> <br /> Spouses may also be barred from testifying because of the the [[Marital Confidences and Spousal Testimonial Privileges | marital confidences privilege]] or the [[Marital Confidences and Spousal Testimonial Privileges | spousal testimonial privilege]].<br /> <br /> ==Judges==<br /> Because of the inherent conflict of interest, a judge should not be allowed to testify as to facts in a trial over which she is presiding. &lt;ref&gt;Federal Rules of Evidence - Rule 605. Competency of Judge as Witness&lt;/ref&gt;<br /> <br /> ==Jurors==<br /> A juror should not be allowed to testify as to the facts in a trial over which she is a trier of fact. However, in certain circumstances, a juror may be called to testify as to whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form. &lt;ref&gt;Federal Rules of Evidence - Rule 606. Competency of Juror as Witness&lt;/ref&gt;<br /> <br /> ==Dead Man's Statute==<br /> Certain jurisdictions may have enacted so-called &quot;Dead Man's Statutes&quot; which prevent certain parties from testifying as to business dealings with deceased individuals.<br /> <br /> No testimony is allowed in civil cases for the party opposing a dead or incompetent person, by parties, interested persons or predecessors, about or dealing with the dead or incompetent person unless the dead or incompetent person opens the door to inclusion of the evidence or unless the testimony is about the facts of an accident in a negligence case.<br /> <br /> '''Example:'''<br /> &lt;blockquote&gt;&quot;Upon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . concerning a personal transaction or communication between the witness and the deceased person . . . except where the executor . . . is examined in his own behalf . . . concerning the same transaction or communication.&quot; &lt;ref&gt; New York Civil Practice Law and Rules 4519(a)&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> ----<br /> See [[Evidence]]<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Competency_to_Testify&diff=4948 2010-07-27T10:04:06Z

<p>Eeichler: /* Dead Man&#039;s Statute */</p> <hr /> <div>==Background==<br /> At common law atheists, children, the mentally impaired, convicted felons, accomplices, parties, parties' spouses and other interested persons were considered incompetent to testify because these witnesses could either 1) not be trusted to respect the oath or 2) had an interest in the proceedings. Today most of these witnesses can testify, subject to some limitations.<br /> <br /> ==Competency Today==<br /> As a general rule, most witnesses are presumed to be competent and able to give testimony at a trial. However, competency may be tested for each individual witness. In the U.S. Federal Courts, competency is determined on a case-by-case basis. <br /> <br /> General requirements for competency:<br /> *'''Oath or Affirmation''' - In many courts every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. If the individual does not understand the oath or affirmation, then they may be incompetent to testify.&lt;ref&gt;Federal Rules of Evidence - Rule 603. Oath or Affirmation&lt;/ref&gt;<br /> *'''Knowledge''' - A witness is only competent to testify if they have personal knowledge of the facts to which they will testify. &lt;ref&gt;Federal Rules of Evidence - Rule 602. Lack of Personal Knowledge&lt;/ref&gt;<br /> <br /> Competency to testify merely acts as a gatekeeper function keeping certain unreliable witness out of court. That is to say, a competent witness is not automatically reliable or material. A trier of fact (judge or jury) may still discount the testimony as weightless.<br /> <br /> ==Mentally Disabled==<br /> If there is a question of mental disability, it is the duty of the opposing counsel to raise the issue of the competency of the adult. If one party raises the question of a witness's competency to testify, the court may order a hearing, during which:<br /> #The witness must answer questions as to their ability to tell the truth<br /> #The witness is asked whether he or she understands what an oath or affirmation is.<br /> #The witness is examined to determine whether he or she understands the duty to speak the truth in terms of everyday social conduct.<br /> At the end of the hearing, the judge will determine whether the witness is competent to testify. The burden of proof is on the opposing party to prove incompetence.<br /> <br /> ==Children==<br /> The rules for children are similar to those for the mentally disabled. However, if a child is very young they may be presumed to be incompetent to testify. For instance, in Canada a child is presumed to be incompetent if they are under the age of 14.<br /> <br /> If a child is presumed to be incompetent under local evidence law, the lawyer may still attempt to prove competency by overcoming:<br /> #The concern that children are easily influenced and suggestible.<br /> #The presumption that a child cannot understand the moral obligation to tell the truth.<br /> <br /> Even if the evidence is admissible, the trier of fact does not have to give the evidence much weight.<br /> <br /> ==Spouses==<br /> <br /> Depending on the jurisdiction, spouses may be incompetent to testify against one another in a criminal case. In the U.S. Federal Courts this common law rule was abolished with the advent of the Federal Rules of Procedure. However, some states retain a version of the spousal incompetence rule. For instance, in New York one spouse may be incompetent to testify against another spouse if the issue is adultery. &lt;ref&gt; New York Civil Practice Law and Rules 4502&lt;/ref&gt;<br /> <br /> Spouses may also be barred from testifying because of the the [[Marital Confidences and Spousal Testimonial Privileges | marital confidences privilege]] or the [[Marital Confidences and Spousal Testimonial Privileges | spousal testimonial privilege]].<br /> <br /> ==Judges==<br /> Because of the inherent conflict of interest, a judge should not be allowed to testify as to facts in a trial over which she is presiding. &lt;ref&gt;Federal Rules of Evidence - Rule 605. Competency of Judge as Witness&lt;/ref&gt;<br /> <br /> ==Jurors==<br /> A juror should not be allowed to testify as to the facts in a trial over which she is a trier of fact. However, in certain circumstances, a juror may be called to testify as to whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form. &lt;ref&gt;Federal Rules of Evidence - Rule 606. Competency of Juror as Witness&lt;/ref&gt;<br /> <br /> ==Dead Man's Statute==<br /> Certain jurisdictions may have enacted so-called &quot;Dead Man's Statutes&quot; which prevent certain parties from testifying as to business dealings with deceased individuals.<br /> <br /> No testimony is allowed in civil cases by parties, interested persons or predecessors, for the party opposing a dead or incompetent person about or dealing with the dead or incompetent person unless the dead or incompetent person opens the door to inclusion of the evidence or unless the testimony is about the facts of an accident in a negligence case.<br /> <br /> '''Example:'''<br /> &lt;blockquote&gt;&quot;Upon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . concerning a personal transaction or communication between the witness and the deceased person . . . except where the executor . . . is examined in his own behalf . . . concerning the same transaction or communication.&quot; &lt;ref&gt; New York Civil Practice Law and Rules 4519(a)&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> ----<br /> See [[Evidence]]<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Competency_to_Testify&diff=4938 2010-07-27T09:49:58Z

<p>Eeichler: </p> <hr /> <div>==Background==<br /> At common law atheists, children, the mentally impaired, convicted felons, accomplices, parties, parties' spouses and other interested persons were considered incompetent to testify because these witnesses could either 1) not be trusted to respect the oath or 2) had an interest in the proceedings. Today most of these witnesses can testify, subject to some limitations.<br /> <br /> ==Competency Today==<br /> As a general rule, most witnesses are presumed to be competent and able to give testimony at a trial. However, competency may be tested for each individual witness. In the U.S. Federal Courts, competency is determined on a case-by-case basis. <br /> <br /> General requirements for competency:<br /> *'''Oath or Affirmation''' - In many courts every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. If the individual does not understand the oath or affirmation, then they may be incompetent to testify.&lt;ref&gt;Federal Rules of Evidence - Rule 603. Oath or Affirmation&lt;/ref&gt;<br /> *'''Knowledge''' - A witness is only competent to testify if they have personal knowledge of the facts to which they will testify. &lt;ref&gt;Federal Rules of Evidence - Rule 602. Lack of Personal Knowledge&lt;/ref&gt;<br /> <br /> Competency to testify merely acts as a gatekeeper function keeping certain unreliable witness out of court. That is to say, a competent witness is not automatically reliable or material. A trier of fact (judge or jury) may still discount the testimony as weightless.<br /> <br /> ==Mentally Disabled==<br /> If there is a question of mental disability, it is the duty of the opposing counsel to raise the issue of the competency of the adult. If one party raises the question of a witness's competency to testify, the court may order a hearing, during which:<br /> #The witness must answer questions as to their ability to tell the truth<br /> #The witness is asked whether he or she understands what an oath or affirmation is.<br /> #The witness is examined to determine whether he or she understands the duty to speak the truth in terms of everyday social conduct.<br /> At the end of the hearing, the judge will determine whether the witness is competent to testify. The burden of proof is on the opposing party to prove incompetence.<br /> <br /> ==Children==<br /> The rules for children are similar to those for the mentally disabled. However, if a child is very young they may be presumed to be incompetent to testify. For instance, in Canada a child is presumed to be incompetent if they are under the age of 14.<br /> <br /> If a child is presumed to be incompetent under local evidence law, the lawyer may still attempt to prove competency by overcoming:<br /> #The concern that children are easily influenced and suggestible.<br /> #The presumption that a child cannot understand the moral obligation to tell the truth.<br /> <br /> Even if the evidence is admissible, the trier of fact does not have to give the evidence much weight.<br /> <br /> ==Spouses==<br /> <br /> Depending on the jurisdiction, spouses may be incompetent to testify against one another in a criminal case. In the U.S. Federal Courts this common law rule was abolished with the advent of the Federal Rules of Procedure. However, some states retain a version of the spousal incompetence rule. For instance, in New York one spouse may be incompetent to testify against another spouse if the issue is adultery. &lt;ref&gt; New York Civil Practice Law and Rules 4502&lt;/ref&gt;<br /> <br /> Spouses may also be barred from testifying because of the the [[Marital Confidences and Spousal Testimonial Privileges | marital confidences privilege]] or the [[Marital Confidences and Spousal Testimonial Privileges | spousal testimonial privilege]].<br /> <br /> ==Judges==<br /> Because of the inherent conflict of interest, a judge should not be allowed to testify as to facts in a trial over which she is presiding. &lt;ref&gt;Federal Rules of Evidence - Rule 605. Competency of Judge as Witness&lt;/ref&gt;<br /> <br /> ==Jurors==<br /> A juror should not be allowed to testify as to the facts in a trial over which she is a trier of fact. However, in certain circumstances, a juror may be called to testify as to whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form. &lt;ref&gt;Federal Rules of Evidence - Rule 606. Competency of Juror as Witness&lt;/ref&gt;<br /> <br /> ==Dead Man's Statute==<br /> Certain jurisdictions may have enacted so-called &quot;Dead Man's Statutes&quot; which prevent certain parties from testifying as to business dealings with deceased individuals.<br /> <br /> No testimony is allowed in civil cases by parties, interested persons or predecessors, for the party against a dead or incompetent person about dealing with the dead or incompetent person unless the dead or incompetent person opens the door or unless the testimony is about the facts of an accident in a negligence case.<br /> <br /> '''Example:'''<br /> &lt;blockquote&gt;&quot;Upon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . concerning a personal transaction or communication between the witness and the deceased person . . . except where the executor . . . is examined in his own behalf . . . concerning the same transaction or communication.&quot; &lt;ref&gt; New York Civil Practice Law and Rules 4519(a)&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> ----<br /> See [[Evidence]]<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Competency_to_Testify&diff=4886 2010-07-27T08:49:51Z

<p>Eeichler: </p> <hr /> <div>==Background==<br /> At common law atheists, children, the mentally impaired, convicted felons, accomplices, parties, parties' spouses and other interested persons were considered incompetent to testify because these witnesses could either 1) not be trusted to respect the oath or 2) had an interest in the proceedings. Today most of these witnesses can testify, subject to some limitations.<br /> <br /> ==Competency Today==<br /> As a general rule most witnesses are presumed to be competent and able to give testimony at a trial. However, competency may be tested for each individual witness. In the U.S. Federal Courts, competency is determined on a case by case basis. Following are some of the situations a criminal defense attorney may encounter regarding testimonial competency.<br /> <br /> Following are general requirements for competency:<br /> *'''Oath or Affirmation''' - In many courts every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. If the individual does not understand the oath or affirmation, then they may be incompetent to testify.&lt;ref&gt;Federal Rules of Evidence - Rule 603. Oath or Affirmation&lt;/ref&gt;<br /> *'''Knowledge''' - A witness is only competent to testify if they have personal knowledge of the facts that they will testify. &lt;ref&gt;Federal Rules of Evidence - Rule 602. Lack of Personal Knowledge&lt;/ref&gt;<br /> <br /> Competence to testify merely acts as a gatekeeper function keeping certain unreliable witness out of court. A competent witness is not automatically reliable or material. A trier of fact (judge or jury) may still discount the testimony is weightless.<br /> <br /> ==Mentally Disabled==<br /> If there is a question of mental disability then it is the duty of the opposing counsel to raise the issue of competency of the adult. If one party raises the question of a witness's competency to testify, the court may order a hearing where:<br /> #The witness must answer questions as to their ability to tell the truth<br /> #The witness is asked whether then understand what an oath or affirmation is.<br /> #The witness is examined to determine whether the understand the duty to speak the truth in terms of everyday social conduct.<br /> At the end of the hearing, the judge will determine whether the witness is competent to testify. The burden of proof is on the opposing party to prove incompetence.<br /> <br /> ==Children==<br /> The rules for children are similar to those of the mentally disabled. However, if a child is very young they may be presumed to be incompetent to testify. For instance, in Canada a child is presumed to be incompetent if they are under age 14.<br /> <br /> If a child is presumed incompetent under local evidence law, the lawyer may still attempt to overcome the presumption by overcoming:<br /> #The concern that children are easily influenced and suggestible.<br /> #The presumption that a child cannot understand the moral obligation to tell the truth.<br /> <br /> Even if the evidence is admissible, the trier of fact does not have to give the evidence very much weight.<br /> <br /> ==Spouses==<br /> <br /> Depending on the jurisdiction, spouses may be competent to testify against one another in a criminal case. In the U.S. Federal Courts this common law rule was abolished with the advent of the Federal Rules of Procedure. However, some states retain a version of the spousal incompetence rule. For instance, in New York one spouse may be incompetent to testify against another spouse if the issue is adultery. &lt;ref&gt; New York Civil Practice Law and Rules 4502&lt;/ref&gt;<br /> <br /> Spouses may also be barred from testifying because of the the [[Marital Confidences and Spousal Testimonial Privileges | marital confidences privilege]] or the [[Marital Confidences and Spousal Testimonial Privileges | spousal testimonial privilege]]<br /> <br /> ==Judges==<br /> Because of the inherent conflict of interest, a judge should not be allowed to testify as to facts in a trial over which she is presiding. &lt;ref&gt;Federal Rules of Evidence - Rule 605. Competency of Judge as Witness&lt;/ref&gt;<br /> <br /> ==Jurors==<br /> A juror should not be allowed to testify as to the facts in a trial over which she is a trier of fact. However, in certain circumstances a juror may be called to testify as to whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form. &lt;ref&gt;Federal Rules of Evidence - Rule 606. Competency of Juror as Witness&lt;/ref&gt;<br /> <br /> ==Dead Man's Statute==<br /> Certain jurisdictions may have enacted so-called &quot;Dead Man's Statutes&quot; which prevent certain parties from testifying as to business dealings with deceased individuals.<br /> <br /> No testimony in civil case by parties, interested persons or predecessors, for the party against a dead or incompetent person about dealing with the dead or incompetent person unless the dead or incompetent person opens the door or unless the testimony is about the facts of an accident in a negligence case.<br /> <br /> '''Example:'''<br /> &lt;blockquote&gt;&quot;Upon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . concerning a personal transaction or communication between the witness and the deceased person . . . except where the executor . . . is examined in his own behalf . . . concerning the same transaction or communication.&quot; &lt;ref&gt; New York Civil Practice Law and Rules 4519(a)&lt;/ref&gt;&lt;/blockquote&gt;<br /> <br /> ----<br /> See [[Evidence]]<br /> <br /> ==Notes==<br /> &lt;references/&gt;</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=3481 2010-06-23T13:46:52Z

<p>Eeichler: /* What is Torture? */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3480 2010-06-23T13:40:41Z

<p>Eeichler: </p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to remove oneself from the situation before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements of self-defense based on the circumstances and type of force used:<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> In a 2010 decision, the Supreme Court of India announced ten principles of self defense [http://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&amp;hl=en_GB]:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3464 2010-06-23T07:46:25Z

<p>Eeichler: /* Non-U.S. Jurisdictions */</p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to remove oneself from the situation before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements of self-defense based on the circumstances and type of force used:<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> In a 2010 decision, the Supreme Court of India announced a ten principles of self defense [http://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&amp;hl=en_GB]:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3463 2010-06-23T07:43:22Z

<p>Eeichler: </p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to remove oneself from the situation before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements of self-defense based on the circumstances and type of force used:<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> In a 2010 decision, the Supreme Court of India announced a ten-part approach to the law of self defense [http://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&amp;hl=en_GB]:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3462 2010-06-23T07:34:46Z

<p>Eeichler: /* Non-U.S. Jurisdictions */</p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to retreat (remove oneself from the situation) before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements self-defense based on the circumstances and type of force used.<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> In a 2010 decision, the Supreme Court of India announced a ten-part approach to the law of self defense [http://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&amp;hl=en_GB]:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3461 2010-06-23T07:28:04Z

<p>Eeichler: /* Non-U.S. Jurisdictions */</p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to retreat (remove oneself from the situation) before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements self-defense based on the circumstances and type of force used.<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> The Supreme Court of India announced a ten-part approach to the law of self defense in a 2010 decision [http://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&amp;hl=en_GB]:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3460 2010-06-23T07:27:24Z

<p>Eeichler: /* Non-U.S. Jurisdictions */</p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to retreat (remove oneself from the situation) before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements self-defense based on the circumstances and type of force used.<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> The Supreme Court of India, in a 2010 decision [http://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&amp;hl=en_GB] announced its approach to the law of self defense, which has ten separate components:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3459 2010-06-23T07:26:35Z

<p>Eeichler: /* Non-U.S. Jurisdictions */</p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to retreat (remove oneself from the situation) before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements self-defense based on the circumstances and type of force used.<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> In India, a 2010 Supreme Court decision [http://docs.google.com/fileview?id=0B6hXZkfsIpLQN2Y2MzM3NjAtMTA5My00NzJkLThjYTUtNGFmYTY4YTEyM2Q0&amp;hl=en_GB] announced its approach to the law of self defense, with ten separate elements:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3458 2010-06-23T07:24:15Z

<p>Eeichler: </p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to retreat (remove oneself from the situation) before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements self-defense based on the circumstances and type of force used.<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> ===Non-U.S. Jurisdictions===<br /> <br /> In India, a 2010 Supreme Court decision announced its approach to the law of self defense, with ten separate elements:<br /> *1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.<br /> *2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.<br /> *3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.<br /> *4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.<br /> *5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.<br /> *6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.<br /> *7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.<br /> *8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.<br /> *9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.<br /> *10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. <br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3456 2010-06-22T09:57:07Z

<p>Eeichler: </p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to retreat (remove oneself from the situation) before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements self-defense based on the circumstances and type of force used.<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Self-Defense&diff=3455 2010-06-22T08:00:42Z

<p>Eeichler: </p> <hr /> <div>Self-defense is a defense commonly asserted by someone charged with a crime of violence (murder, battery, etc.). If a defendant claims he acted in self-defense, he admits that he did in fact commit the crime but claims his actions were justified by the victim's threatening actions. In evaluating whether you might be able to successfully argue self-defense for your client, you should determine whether there is evidence of a physical struggle (e.g., whether your client has scratches or other injuries) and also pay attention to the relative size of your client and the victim. <br /> <br /> Self-defense and related defenses are based on the theory that people should be allowed to protect themselves from physical violence. This means that a person does not have to wait until he is actually hurt by another to use self-defense. In a majority of United States jurisdictions, there is no duty to retreat (remove oneself from the situation) before acting in self-defense. That means that a person can use deadly force in self-defense even if this could be avoided by retreating. <br /> <br /> In the United States, there are different elements self-defense based on the circumstances and type of force used.<br /> <br /> '''Non-Deadly Force''' - If the defendant uses non-deadly force, generally all the defendant has to show to escape conviction is that the force was reasonably necessary to protect himself from the imminent use of unlawful force and that he was without fault.<br /> <br /> '''Deadly Force''' - A person may use deadly force in self defense if each of the following elements is met:<br /> <br /> * He is without fault. A person who has initiated an assault or provoked the other party will be considered the aggressor and will not be eligible for self-defense except in certain circumstances described below; <br /> * He is confronted with unlawful force. The attacker must be using force that is a crime; <br /> * He is threatened with imminent death or great bodily harm. The defendant must reasonably believe that he is faced with imminent death or great bodily harm if he does not respond with deadly force. The danger of harm must be imminent. There is no right to use deadly force if harm is simply threatened at a future time or the attacker has no present ability to carry out the threat. For example, if a person threatens to kill someone while his hands are tied behind his back, the person threatened will not be justified in using self-defense.<br /> <br /> '''Right of Aggressor to Use Self-Defense''' - Generally, the person who starts a fight has no right to use force in his own defense during that fight. However, an aggressor can regain his right to use self-defense in two circumstances: <br /> <br /> * Withdrawal. Withdrawal occurs if in good faith the aggressor removes himself from the fight and communicates to the other person his desire to remove himself. If the other participant in the fight rejects the withdrawal or continues to fight, the initial aggressor can use force in self-defense.<br /> * Sudden Escalation. If the victim suddenly escalates a minor fight into one involving deadly force and without giving the aggressor a chance to withdraw, the aggressor can use force in self-defense.<br /> <br /> See [[Defenses]]</div>

Eeichler https://defensewiki.ibj.org/index.php?title=Mens_Rea_(Culpable_Mental_State)&diff=3304 2010-06-17T12:49:16Z

<p>Eeichler: /* Specific v. General Intent Crimes */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Mens_Rea_(Culpable_Mental_State)&diff=3295 2010-06-17T10:38:16Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Mens_Rea_(Culpable_Mental_State)&diff=3292 2010-06-17T10:31:58Z

<p>Eeichler: </p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Mens_Rea_(Culpable_Mental_State)&diff=3291 2010-06-17T10:29:12Z

<p>Eeichler: /* Specific v. General Intent Crimes */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Mens_Rea_(Culpable_Mental_State)&diff=3289 2010-06-17T10:27:16Z

<p>Eeichler: /* Specific v. General Intent Crimes */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Mens_Rea_(Culpable_Mental_State)&diff=3288 2010-06-17T10:26:08Z

<p>Eeichler: /* Background */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Actus_Reus_(Voluntary_Act)&diff=3287 2010-06-17T10:24:51Z

<p>Eeichler: /* Model Penal Code */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Actus_Reus_(Voluntary_Act)&diff=3285 2010-06-17T10:24:21Z

<p>Eeichler: /* Model Penal Code */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Actus_Reus_(Voluntary_Act)&diff=3284 2010-06-17T10:24:11Z

<p>Eeichler: /* Model Penal Code */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Actus_Reus_(Voluntary_Act)&diff=3280 2010-06-17T10:04:33Z

<p>Eeichler: /* Model Penal Code */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Actus_Reus_(Voluntary_Act)&diff=3279 2010-06-17T10:03:55Z

<p>Eeichler: /* Model Penal Code */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Actus_Reus_(Voluntary_Act)&diff=3278 2010-06-17T10:01:19Z

<p>Eeichler: /* Model Penal Code */</p> <hr /> <div></div>

Eeichler https://defensewiki.ibj.org/index.php?title=Actus_Reus_(Voluntary_Act)&diff=3277 2010-06-17T10:00:11Z

<p>Eeichler: /* Model Penal Code */</p> <hr /> <div></div>

Eeichler