Defenses against Charges of Child Pornography

Child pornography has become a growing area of concern during this modern era where information, videos and images can be easily and rapidly accessed.  A great number of child pornography cases are handled by reputable lawyers worldwide. For those convicted, these charges can be a cause of distress. Hence, an aggressive defense strategy is needed.

Majority of child pornography cases begin with a search and warrant followed by the seizure of equipment. These may include iPods, mp3 players, DVD players, discs, flash drives, hard drives and computers. Search warrants may be issued when someone reports finding pornographic materials involving children through a computer. The person reporting may be a computer technician, a family friend or any other person who has remote or direct access to the system. In a few cases, law enforcement authorities make use of downloaded peer-to-peer software to investigate networked computers to check for files that may include illicit pornographic materials. Lastly, law enforcement authorities may find IP addresses and accounts when website postings are taken down. A lot of these sites, some of which are hosted in countries abroad, ask users for some fees in exchange of access. These sites usually maintain records of users in their system.

How to Defend Yourself Against a Charge of Child Pornography

Step 1 – You should not make any statement to other persons, most especially to police officers. You should also not discuss the facts of the case with friends or family members.

Step 2 – You should immediately engage the services of a legal counsel. In a charge of child pornography, you will highly be caught in a waiting game for a certain period of time while computer forensics run system scans on the seized electronic devices. The investigations may last from a couple of months to a year.

The Defenses Available

  • It should be pointed out that it is not a crime to possess pornographic materials. Only the possession of child pornography constitutes a criminal offense. It also requires that the accused had the intent to possess such. This means that the accused must be proven to have the intent to take into possession of such images and that the accused has the reason to take cognizance of its true character and content.
  • There are a lot of ways an individual can obtain images on a computer which does not necessarily imply that they had the requisite of knowledge or intent to take into possession of the image. Computers may have a lot of users. Determining which particular user may have accesses, disseminated, or downloaded the illegal images may be a crucial defense issue.
  • Some states have ruled that an individual cannot be found guilty of this criminal offense based simply on viewing the illegal images in a home computer. Wisconsin, Washington, Virginia and Pennsylvania have had similar rulings on the case. When a particular image is viewed in a computer, that photo is “cached” by the web browser. This implies that the photo may exist on the computer without the individual even trying to download the picture. While the individual may have taken cognizance of what he or she is viewing, the person may have been unaware that the photos are downloaded and saved automatically to the computer, and hence did not knowingly take into possession the “pornography” as state statutes requires.

Limits of Exercising Your Rights without Being Guilty Of Disorderly Conduct

Disorderly conduct is a minor offense and is among the most often committed crime. A person can be charged of this crime when he knowingly disrupts the peace, thus endangering the safety in a certain area. It is a broad offense that ranges from making loud noises in public to causing disruptions in the normal flow of traffic. It works like an umbrella law that covers different subtopics. Each state or country has varying opinions on whether the conduct can be considered disorderly or not.

As this law covers a broad scope, the guidelines that help in determining if a person committed this crime are the circumstances of the situation and the extent of the affected parties. Examples of disorderly conduct are as follow:

When a group of people in public starts making loud noises; when a group of drunken teens hang out in public places; when people are found continuously walking around the vicinity in the middle of the night after curfew; when a crowd breaks into fights; when the house party becomes too loud that the neighbors are disturbed; when couples engage in obscene acts in public; when a person goes through public trash bins and leaves the contents on the street; when a person is involved in prostitution in areas where it is illegal; when protests without permit cause traffic jams; when a person urinates in inappropriate places.

The most common disorderly conduct violation stems from people’s encounter with law enforcement officers.  A person who is pulled up by a police officer for reasons such as speeding or traffic rule violation can be charged with this crime when he starts to threaten the officer.  Regardless of whether he was truly speeding or not, he can be charged separately for his disruptive or destructive conduct.

Disorderly conduct is so similar to misdemeanor cases.  This makes it difficult to judge as it oftentimes breaches the wall between the person’s freedom of speech and his limitations. A law enforcement officer who easily gives the offenders a violation slip can wrongly accuse them of disrupting the neighborhood’s peace when in fact, they are just exercising their rights according to the Constitution.

This offense is criminally punishable.  Once the defendant is found guilty of the crime through a fair trial, he may face a number of penalties including being on probation for a period decided by the Judge, paying certain amount that range from $25 to $1,000, and being imprisoned for as long as a year. It may be a minor offence but as all other criminal cases are, it also leaves criminal consequences.

The person’s record will forever be marked with this crime which can affect his chances of getting a good job or entering into a reputable university. Pleading guilty should not be done so recklessly just to get off of the case immediately. It is best to consult with a lawyer who can find ways to prevent the person’s records to permanently bear the criminal offense.

You should remember that you have your rights as outlined by the Constitution however, the exercise of these rights are subject to making sure that others can also freely exercise and enjoy theirs.

When Is Killing Considered Murder Or Manslaughter

In understanding these two crimes, it is best to begin from their similarities. Murder and manslaughter are both subtopics under homicide which, simply put, is defined as killing another person. It can either be lawful and unlawful depending on the circumstances and other factors present at the time of the crime.   Comparing murder vs manslaughter is necessary to understand the differences in penalties and legal recourse.

For a case to be considered murder, these elements have to be present:

  1. Malice aforethought. Before the offender commits the crime, he must have fully intended to kill the victim. This also includes cases where the victim did not die instantaneously after the offender’s attack but eventually died because of further complications caused by this same attack.
  2. Mental stability. The offender is sane at the time of the crime.
  3. Unlawful killing.
  4. There are at least two parties involved. Although the aforementioned criteria are present in suicide, the fatal injury is self-inflicted that is why it is not generally considered a criminal offense.

As murder is almost always judged based on the mitigating factors that led to the crime, the law classifies it into first degree and second degree. While all elements stated above are present in both, the circumstances of how the victim was killed or who the victim was account for the varying degrees.

If the victim is a policeman, firefighter, Judge, pregnant woman, or a witness to the crime, it is a first-degree murder case. Other factors that instantly categorize the murder as first degree are severe torture, kidnapping, murder associated with other crimes, and sexual assault. If the murder is said to be “spur of the moment” but done with malice, then it is classified as second degree.

Manslaughter, on the other hand, also has some of the elements of murder.  For reasons such as mental instability and negligence, however, the mitigating factors make the crime less grave than murder. Manslaughter can be classified into voluntary and involuntary.

Voluntary manslaughter happens when the person kills another out of sudden uncontrollable emotions that momentarily cause him to become mentally unstable while involuntary manslaughter happens when the person, due to criminal negligence such as driving under the influence of alcohol or when a medical staff forgets to replenish the oxygen supply of a patient, unintentionally kills another.

The main distinction of murder vs manslaughter is the presence of premeditation. When the offender, with a sound mind, has been proven to have all intentions of killing the victim prior to the crime, he committed murder. His crime can only be reduced to manslaughter if he killed the victim in what is called as “heat of passion” or he killed by negligence.

Both are punishable by law but the degree of punishment varies according to how grave the offender’s crime is. First-degree murders can receive death penalty depending on how cruel his crime was. Second-degree murders vary from each country but the offender usually serves at least 10 years in prison. Generally, the punishments are harsher for persons found guilty of murder vs manslaughter, which if proven to be less culpable, can be served for only 3 years depending on the law of the state

What are My Rights at a DUI Checkpoint?

A Florida lawyer’s “strategy” for dealing with a DUI checkpoint has caught the imagination of motorists all over the country and put the spotlight on what drivers’ rights are when they are stopped at a checkpoint. According to Warren Redlich, all you have to do when approaching the checkpoint is to put your license and proof that you are insured in a plastic sleeve as well as a flier declaring that you want an attorney, are remaining silent and refuse requests for a search of your vehicle.  Roll up the window with the plastic sleeve on the outside and then refuse to roll down the window or say anything. Doing this would prevent the officers manning the checkpoint from claiming that you showed signs of intoxication such as slurred speech or breath that smells of alcohol. A video of Redlich using this tactic that he posted on YouTube has already been viewed more than two million times.

While Florida police have disputed the legitimacy of the tactic and claimed that Redlich was allowed to pass simply because he showed no signs of intoxication, Redlich said that his method was successful in achieving his stated goal of preventing police from making up a reason to arrest drivers for a DUI. He also claimed that it was not a method that would allow drivers who were actually intoxicated from avoiding arrest since it requires a certain amount of discipline to successfully implement.

Keep in mind that a DUI checkpoint is only legal if it is conducted properly. The following criteria must be followed:

  • Motorists must be stopped according to a neutral formula that does not discriminate against particular drivers.
  • Proper safety precautions, such as adequate lighting, prominently-displayed warning signs, and clearly-identifiable police personnel and vehicles.
  • There must be sufficient indication that the checkpoint is an official one and its nature clearly identified.

What are the rights you can assert when at a DUI checkpoint?

  • The right to not speak to the officers until you can consult with your lawyer.
  • The right to refuse to give consent to a search of your person, car or personal effects.
  • The right to refuse to answer questions without a lawyer present, as well as to participate in acts such as a line-up or other physical acts such as a field sobriety test.
  • The right to exercise your Miranda rights if you are under arrest, and to confer with an attorney if the officer does not recognize your rights.
  • The right to refuse to give consent to an impoundment of your vehicle if you are taken into custody, as well as to make reasonable arrangements to secure your property.

You can have your rights printed in a card that you will hand to the officer along with your license and registration.

In addition, you can refuse to participate in field sobriety tests while at the DUI checkpoint. Keep in mind that refusing these tests will not prevent the officer from arresting you if he believes he has probable cause to do so, but will prevent him from gathering more evidence which can be used against you in court.

Common DUI Defenses That You Can Mount

There are a number of DUI defenses that are available to you if are caught driving while intoxicated. By mounting a strong defense rather than simply accepting the charge, you might convince the prosecution to drop the case or offer to reduce the charge so that you can avoid the more severe penalties such as suspension of your license.

There are two elements to a DUI case: that the defendant was driving at the time they were stopped and that their ability to drive safely was significantly impaired by being intoxicated or having done drugs or a combination of the two. If either of these two elements is proven wrong, the prosecution can’t prove its case. The defense might also attempt to prevent the prosecution from introducing certain pieces of evidence at trial, which can hinder them from proving their case.

The most viable DUI defenses are those in which the procedures related to the arrest are questioned. If the officer failed to follow the right procedures, or did not have any legal justification, when making the arrest, then any evidence gathered from it or the traffic stop may be deemed by the judge to be inadmissible. Without this evidence, the prosecution might have no case and would thus be forced to withdraw the charges.

If you believe, for example, that the officer stopped you because you looked suspicious as a result of your ethnicity, rather than because he saw you driving erratically, you might be able to challenge your arrest.  If you were not read the Miranda warning when you were arrested, then you may be able to question the arrest process and get some evidence excluded at trial.

You can also introduce witnesses to dispute the officer’s observations regarding your state of intoxication. If you can challenge the officer’s contention that you were driving erratically or that you looked intoxicated by offering a witness who will testify to the contrary. For example, if there was another person with you in the car and you accidently crossed the center line because you were distracted, you can ask him or her to testify to this fact in court.

Another viable defense is to contest the accuracy of tests conducted by the officer to determine your level of intoxication. For example, if the officer administers a portable breathalyzer at the scene, the defense may raise questions as to whether the device was properly maintained and calibrated, which would affect the accuracy of its readings, or whether the officer was properly trained to use the device. In addition, they may also claim that there were factors such as indigestion and vomiting which could affect breathalyzer readings.

Other DUI defenses involve questioning the administration of field sobriety tests. For example, if you failed one of these sobriety tests, your lawyer may question if the test was applied properly or if the officer interpreted the results properly. For example, if the officer administered the horizontal gaze nystagmus test, the lawyer may raise doubts as to whether it was administered correctly.

An Overview of the Problem of Women in Prison

According to statistics derived from the Bureau of Justice, the number of women in prison is rapidly growing at nearly twice the rate for male prisoners. Around a third of these are jailed for drug offenses and female prisoners often suffer from substance abuse as well as having high rates of being infected with HIV. In addition, many of them have histories of sexual and physical abuse.

What are the factors behind this unprecedented increase? One major contributor is the ‘war on drugs’ which has resulted in some 25% of the women in prison being there due to non-violent drug-related crimes. Others are imprisoned due to other non-violent offenses such as property-related crimes and robbery.

A lot of women end up behind bars after they are arrested as an accomplice to a partner who is the one who is really engaged in criminal activity. Since their involvement in the criminal activity is marginal, they often have no information which they can trade to the prosecutor in exchange for leniency. Her boyfriend, on the other hand, has more to trade for a deal and thus, often ends up spending less time in prison than his partner, even if he is guilty of an increased number of crimes.

Another factor in the skyrocketing female prison population is the ‘get-tough-on-crime’ tactics adopted by states. While these tactics sound good to voters, they have been remarkably ineffective in reducing incarceration rates and have only unfairly targeted poor minority communities. As a result, female prison population has skewed more towards minorities, primarily Latinos since incarceration rates have significantly decreased for African-American women.

The high rates of female incarceration have also adversely affected their families. A majority of women behind bars report that they have a minor child, while around half of them say that they are jailed in facilities that are over 100 miles away from their families. As a result, a high percentage of them report that they have not seen their children even once while they are in jail. In addition, since many of these women are single parents who are the main caretakers of their children, if they are incarcerated it means that their children are deprived of the only parental figure they have ever known. Thus, there is a high risk that in the future, these children will also turn to criminal activity and end up becoming incarcerated as well.

So what can be done to address the problem? Drug treatment programs for women in prison need to be more readily available to help them address their substance abuse problems. In addition, there needs to be programs that address the issues that led to drug use and addiction in the first place, meaning access to extensive counseling as well as help in reintegrating to society once they are released from prison through job training and education programs. Unfortunately, it seems that these programs will not be readily available, meaning that the issue of increased incarceration of women will not have any easy solutions.

How To Protect Yourself If You’re Presented With A Warrant for Criminal Charges

Criminal charges have serious implications in the life of a person. Depending on the nature of the charges, conviction may lead to imprisonment, fine, probation, dismissal from employment, suspension of driving license, etc. In most U.S. states, after conviction of certain criminal offenses, your name, fingerprints and other details will be entered in to the criminal records databases. The meaning and effect of this is that you may not quality for some jobs, places or other offers that require having no past criminal record.

Because of the serious implications of the criminal charges, you must learn how to protect yourself when you are presented with a warrant of arrest. The arrest warrant is a legal writ that authorizes the arrest and confinement of a person. If a police officer presents warrant of arrest, he/she has the right, power and authority to arrest you. In that instance, do not try to put up defense or resist the arrest. The resistance of arrest is an offense that is punishable by the law.

After the arresting officer has explained the criminal charges preferred against you and that he/she intends to arrest you, you should comply and request to contact your attorney, next of kin, friend or other person whom you feel that you information is important. The arresting officer has no power of denying you the right to inform your attorney, family or any other person of the arrest unless there are very clear and reasonable grounds and reasons of doing so.

Criminal charges such as assault, theft, violent crimes and Driving under Influence may attract serious long sentences in jail upon conviction. If you are charged of these crimes or any other, you must ensure that you build up the proper defense.

Building up a criminal defense is not easy. The prosecution will try its best to convince the presiding jury or magistrate to hand to you the severest and maximum sentence ‘as a way of deterring the commission of that crime by setting example to others’…this is serious!

Building strong defense to criminal charges begins with the hiring of a qualified and experienced criminal lawyer. The criminal lawyer will go through the charges and facts to support the same. He/she will also go through the witness statements and find out, based on his/her experience and training of handling criminal casers, how to defend your case.

The gold standard of the trial and conviction of all the criminal charges is that the prosecution must prove beyond reasonable doubts that you committed the alleged offense or crime. Once you have hired the criminal lawyer, you need give him/her all the material facts that are important in discrediting the prosecution case and building your defense.

The communication between a person charged of a crime and his/her lawyer is considered privileged in the United States. This means that your lawyer cannot be compelled to disclose communications between you and him/her. The criminal lawyer is not supposed to lie to the court or coach your witnesses. He/she will call in witnesses and give in those facts that tend to defend you against the criminal charges that you are facing and discrediting the prosecution’s case.

What To Do If You’re Accused Of Insurance Fraud

Insurance fraud refers to any unrealistic or false claims made to an insurance company such as exaggerated estimates of damage or misreported or under reported information. Insurance fraud can pertain to any area of insurance from medical and home claims, to personal injuries and car collisions. In minor cases, those found guilty are given a felony charge, but in more serious cases insurance fraud can result in a jail sentence.

Due to the huge costs incurred by fraud, insurance companies take implications very seriously. It is usually beneficial for everyone that insurance companies have such strict regulations and pay close when investigating what appear to be fraudulent claims. Insurance fraud incurs costs not only for the insurance company but also for the policy holders. If the cases of fraud increase, insurance companies have to compensate but setting higher premiums.

Sometimes a policy holder may be wrongly accused of insurance fraud, usually due to a lack of evidence that arouses suspicion of the insurance company. It is important to resolve the case as soon as possible to prove the claim is real. Insurance companies almost always have more than enough resources to pursue a fraudulent case, and such matters are considered to be a serious crime as they frequently involve large amounts of money.

It is best to try to resolve everything outside of court, between just the insurance company and accused, as hiring an attorney can run up high and unnecessary costs. This is especially so when there has been a misunderstanding and the case can be solved simply through filing the appropriate paperwork or by presenting firmer evidence that the claim is real such as through medical records. The accused can further support his position by better explaining his defense against the charges and contacting any parties who can support his position.

However, sometimes the company may be disinclined to negotiate in which case it is best to seek the guidance of an attorney and take the matter to court. Attempting to represent oneself in court can cause extreme difficulties. An attorney can better advise the accused on his rights, defense procedures and other important information about the legal system in general.

It is very unlikely that an insurance company will continue to press charges when the accused is represented by an attorney as soon as it becomes clear that no fraud exists. However, first determining whether legal assistance is necessary can save a lot of time, money and inconvenience.

5 Things You Should Understand About Appeals in Criminal Cases

Appeals in criminal cases are often misunderstood both by the layperson and attorneys. The defendant found guilty in a criminal case has the right to appeal the verdict to a federal court of appeals. When considering an appeal, there are a few things you should understand about the appeals process.

An Appeal is Not a Rehearing or Retrial

When an appeal is filed, the Appellate courts reviews the legal briefs filed by the attorneys on each side to determine if there have been any legal errors that took place during the trial. The Appellate court does not accept new information nor do they hear any witnesses. The appellant must show the court that a legal error was made that affected the previous court decision. The appellant may request that the court reverse the decision based on the errors made. At the same time, the appellee will file a brief urging the court to keep the decision as is.

The Appeal Process is Slow

The right to appeal is granted to anyone found guilty which results in a very crowded court system. The appeal process can take months if not years to process.

The court has to consider each and every case that comes before it and this process takes time. The process requires the judges to read through briefs, research and carefully consider the case. It is important for an appellant to recognize the process is slow and to understand that when his case is up for review, he wants the judges to take ample time, consider all of the facts before coming to a decision. The appellate court process is not one that should be rushed.

Cases can be Heard Orally

While an appeals case can be handled entirely by the appellate court reading briefs, it is best for the court to grant oral cases. In this situation, the attorney has the opportunity to orally address the court and explain the reasons why his clients decision should be reversed. Each side will be granted roughly 20 minutes to present his case.

Appeals are Expensive

Handling criminal cases is expensive period but the appeals process adds a substantial amount to the cost. The more difficult the case is, the more time the attorneys must put into the case bringing the cost higher. To appeal, an attorney must spend a significant amount of time going through the transcripts and documents of the court case. He must go through things with a fine tooth comb searching for any and all errors made in the case. Briefs must be prepared with utmost accuracy and no mistakes. The appellate court is very picky and requires rules to be followed exactly.

When cases are heard orally, the attorney may be required to travel adding to the expenses. An experienced attorney can provide a rough estimate of the cost of an appeal but the appellant must realize the cost can change as the case progresses.

Appeals do not Always Result in the Case Being Over

While the goal of the appeals process is to have the verdict overturned and the case over, this is rarely the case. The appeals process may assert that there were trial errors which will result in the appellant starting over with a fresh trial. The appellant has already been through trial once and will now go through the entire process again. The appeals process may render previous evidence suppressed which could hurt the prosecution’s case.

The appeals process in criminal cases is long and difficult process and requires the use of an experienced criminal defense attorney to ensure the best possible outcome.

How Often Is a Juvenile Sentenced to Death?

Since the Supreme Court’s decision in 2005 in the case of Roper v. Simmons, it has been deemed unconstitutional to execute individuals who committed a capital crime while under the age of 18.  The case investigated whether a minor convicted of a crime was protected under the auspices of the Eight Amendment’s prohibition of Cruel and Unusual punishment.  The court decided, based on a variety of circumstances and legal principles that it was inappropriate to seek the death penalty for those who had committed a crime while under the age of Majority.  Their ruling was based on the social standard that those under 18 are prohibited from voting, serving in the military, and serving on juries.  It also cited scientific studies that indicated that those under the age of 18 had not sufficiently neurologically matured so that they are more subject to impulsive and rash acts and more easily manipulated by peers and other nefarious influences in committing crime or acts of violence.  Moreover, the ruling indicated that capital punishment was not appropriate to juvenile conviction, since it is designed to be applied only in the very worst of cases and juveniles are the most likely to benefit from rehabilitation.

Since the time of the founding of the first colonies in America, 364 juveniles have been executed under State or Federal jurisdiction.  Twenty-two of those executions took place since the reinstatement of the death penalty after a series of challenges in 1976.  The lead case, Gregg v. Georgia, established the standards by which a person could possibly be sentenced death.  It found that, in extreme cases, the death sentence does not violate Eight Amendment rights, meets the moral standards of contemporary society, and fulfills its dual purpose of retribution and deterrence.

In any event, it has only been in very rare cases that an individual convicted of committing a crime and sentenced to death was actually executed while still a juvenile.  The slow and laborious process of appeals has ensured that (since 1976) the offender was over 18 at the time of execution.  Of the 22 juvenile offenders executed between 1976 and 2005, all were between 16 and 17 at the time they committed the offense, all were male, 11 were black, 1 was Hispanic, and 10 were white.  All were between the age of 23 and 38 at the time of execution.

The case of Roper v. Simmons is just one indication of the ongoing moral evolution in society.  As we as a people continue to discover more about ourselves, biologically, psychologically, and socially, we are blessed to have a legal and judicial system that is dynamic and continues to adapt to the needs and the conscience of those whom it is designed to serve.