Difference between revisions of "Vietnam Criminal Defense Manual - Preparation of the defense"

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'''Negligent'''
 
'''Negligent'''
  
Should have know of the consequences of the act
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* Should have know of the consequences of the act
Careless failure to know the consequences
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* Careless failure to know the consequences
Indifference to the consequences
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* Indifference to the consequences
Failure to act to prevent the consequences
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* Failure to act to prevent the consequences
  
9a(3) Reckless
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'''Reckless'''
An action outside of accepted behavior
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Practice Tip No. 11: Memorize the four mental states as defined in the VCC, Articles, 9, 10, 11 and 12: Intentional, Unintentional, Unforeseen, Nonimputability.
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* An action outside of accepted behavior
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'''Practice Tip No. 11:'''
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Memorize the four mental states as defined in the VCC, Articles, 9, 10, 11 and 12: Intentional, Unintentional, Unforeseen, Nonimputability.
  
 
Once finding the mental state(s) that apply to the criminal charges, the legal defender should turn to avoiding a mental state that either increases the likelihood of guilt or punishment if they are found guilty.  Avoiding a mental state is harder than showing the existence of a mental state from actions or results.  The argument that the act or the result was exaggerated or misinterpreted is always available.  In addition to this argument, there are others that try to avoid or replace a criminal mental state with one that under the law is not criminal.  Sometimes an expert is necessary.  
 
Once finding the mental state(s) that apply to the criminal charges, the legal defender should turn to avoiding a mental state that either increases the likelihood of guilt or punishment if they are found guilty.  Avoiding a mental state is harder than showing the existence of a mental state from actions or results.  The argument that the act or the result was exaggerated or misinterpreted is always available.  In addition to this argument, there are others that try to avoid or replace a criminal mental state with one that under the law is not criminal.  Sometimes an expert is necessary.  
Practice Tip No. 12: The mental state of both the accused and of witnesses may be subject to the examination of an expert.  See, CPC Article 155, stating that an examination is compulsory if the accused may not understand the circumstances of the charge or trial, and if the witness or victim may not be able to understand and testify truthfully.
 
  
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'''Practice Tip No. 12:'''
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The mental state of both the accused and of witnesses may be subject to the examination of an expert.  See, CPC Article 155, stating that an examination is compulsory if the accused may not understand the circumstances of the charge or trial, and if the witness or victim may not be able to understand and testify truthfully.
  
The most extreme mental state is insanity.  There are, of course, degrees of insanity as well as moments of insanity. The timing of the change in mental state (from sane to insane) will affect the defense.  Sanity may be lost before or at the time of the criminal act.  Sanity may also be lost after the criminal act and sometimes not until the accused is incarcerated.  Declaring someone insane is a difficult task.  However, in the most serious cases with the most damaging evidence, finding the accused insane may be the only way to explain the actions and avoid the most extreme punishment.   
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The most extreme mental state is insanity.  There are, of course, degrees of insanity as well as moments of insanity. The timing of the change in mental state (from sane to insane) will affect the defense.  Sanity may be lost before or at the time of the criminal act.  Sanity may also be lost after the criminal act and sometimes not until the accused is incarcerated.  Declaring someone insane is a difficult task.  However, in the most serious cases with the most damaging evidence, finding the accused insane may be the only way to explain the actions and avoid the most extreme punishment.   
The age of the accused is a source to look at when discussing mental states.  Under the Vietnam Criminal Code, Articles 57 to 60,  there are three ages that a legal defender must be aware of; under 14 years of age, between 14 and 16 years of age, and over 16 years.  Depending on the age of the accused they may or may not be subject to criminal responsibility.  In addition, the young age of an accused also affects their potential sentence.
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The age of the accused is a source to look at when discussing mental states.  Under the Vietnam Criminal Code, Articles 57 to 60,  there are three ages that a legal defender must be aware of; under 14 years of age, between 14 and 16 years of age, and over 16 years.  Depending on the age of the accused they may or may not be subject to criminal responsibility.  In addition, the young age of an accused also affects their potential sentence.
IV.10 Recognized Defenses to Common Crimes
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Recognized defenses are those that are recognized as legal defenses to the criminal charge.  Like all defenses, they must be based on factual evidence and supported by skilled legal argument.  The benefit of these defenses is that they are written into law and thus must be recognized by the court.  If the legal defender can satisfy the elements of the defense, the accused will be freed.  
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'''Recognized Defenses to Common Crimes'''
There are generally two areas of defenses.  First, Justification Defenses.  These defenses are used when the accused admits to the criminal act.  Second, Affirmative Defenses.  These defenses are used when the accused does not admit to the criminal act.  In both defenses, the legal defender must argue the defense on behalf of the accused.  
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Practice Tip No. 13: Justification Defenses are found in the VCC at Articles 13 & 14.   
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Recognized defenses are those that are recognized as legal defenses to the criminal charge.  Like all defenses, they must be based on factual evidence and supported by skilled legal argument.  The benefit of these defenses is that they are written into law and thus must be recognized by the court.  If the legal defender can satisfy the elements of the defense, the accused will be freed. There are generally two areas of defenses.  First, Justification Defenses.  These defenses are used when the accused admits to the criminal act.  Second, Affirmative Defenses.  These defenses are used when the accused does not admit to the criminal act.  In both defenses, the legal defender must argue the defense on behalf of the accused.  
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'''Practice Tip No. 13:'''
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Justification Defenses are found in the VCC at Articles 13 & 14.   
 
 
As you can see from the below list, a Justification Defense requires the legal defender to present evidence to the court.  Not to be overlooked is the statement of the accused.  The legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  Remember, the accused will be admitting to a criminal act!  Here are some ideas that support a Justification Defense.
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As you can see from the below list, a Justification Defense requires the legal defender to present evidence to the court.  Not to be overlooked is the statement of the accused.  The legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  Remember, the accused will be admitting to a criminal act!  Here are some ideas that support a Justification Defense.
10a Justification Defenses
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Ignorance: the accused was unaware that he was committing a criminal act.
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'''Justification Defenses'''
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* '''Ignorance:''' the accused was unaware that he was committing a criminal act.
  
Mistake: the act was made by mistake and without criminal intent
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* '''Mistake:''' the act was made by mistake and without criminal intent
  
Entrapment: the accused was coerced into committing a criminal  
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* '''Entrapment:''' the accused was coerced into committing a criminal act.  Further, it was an action that had not been done in the past.  
act.  Further, it was an action that had not been done in the past.  
 
  
Consent: the act was authorized by an owner or supervisor.  This is usually used when the criminal charge is theft.
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* '''Consent:''' the act was authorized by an owner or supervisor.  This is usually used when the criminal charge is theft.
  
Necessity: the action was made to protect a valid interest.
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* '''Necessity:''' the action was made to protect a valid interest.
  
Self-defense: the act was done in response to a threat and for protection.  The defensive act must be contemporaneous with the threat.  The threat must be commonly recognized threat.  
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* '''Self-defense:''' the act was done in response to a threat and for protection.  The defensive act must be contemporaneous with the threat.  The threat must be commonly recognized threat.  
  
The Defense of Another: the act was done in response to a threat and for protection.
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* '''The Defense of Another:''' the act was done in response to a threat and for protection.
  
The defense of property: the act was done to protect a home or business.  
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* '''The defense of property:''' the act was done to protect a home or business.  
  
 
An Affirmative Defense requires additional efforts since the accused is arguing that, despite the prosecutor's case, he did not do the crime.  And in some cases the accused will argue that he was not at the crime scene.  Again, the legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  One must remember that these defenses argue that the prosecutor and his investigators are completely mistaken!  Here are some ideas that support an Affirmative Defense.
 
An Affirmative Defense requires additional efforts since the accused is arguing that, despite the prosecutor's case, he did not do the crime.  And in some cases the accused will argue that he was not at the crime scene.  Again, the legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  One must remember that these defenses argue that the prosecutor and his investigators are completely mistaken!  Here are some ideas that support an Affirmative Defense.

Revision as of 15:00, 7 June 2010