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Criminal Defenses and Theories Of Defense In Colorado

By Colorado Criminal Defense Lawyer for Trial Strategies – H. Michael Steinberg

Common Criminal Defenses and Theories of Defense in Colorado are not often complex to the person looking in . The purpose of this article is to explore some of the more common defenses so that the reader can understand what Colorado criminal defense attorneys think about before proceeding to trial. The defendant’s “theory of the case” often turns on one or more of these 7 common defenses.

Criminal Defenses and Theories of Defense

Criminal Defenses and Theories of Defense

 

Here are the Defenses:

Criminal Defenses and Theories Of Defense

The SODDI (“Some other dude did it”) Defense- The Wrong Man Has Been Accused

The SODDI defense is classically used in identification defense cases where the witnesses are not absolutely certain the accused committed the crime charged.  It diverts the focus from the defendant to the “real perp”, who is not in the courtroom to defend himself. It enables the defense lawyer to focus the attack on the police investigation – placing that investigation on trial by targeting the lazy investigators – who – satisfied they had the right man – ignored clues pointing to the alternate suspec.

When you use this defense the defendant would not be compelled to testify. Since he did not commit the crime – he would obviously not know how the crime occurred.

A criminal defendant has an absolute constitutional right to present this theory of defense.

Criminal Defenses and Theories Of Defense -The Consciousness of Innocence Defense

Lawyers learn the art of “spinning” facts from years of experience in the courtroom. Crimes that require specific intent – also known as premeditation – are disproved by introducing evidence of actions on the part of the defendant that suggest lack of intent or lack of knowledge. The spinning occurs when the actions were the result of a client’s mistakes and are then “spun” to support the position that the evidence of non-action or even what could be argued as harmful evidence – establishes real innocence.

Some Examples Of The Consciousness of Innocence Defense

The Cooperative Suspect – Why would a defendant who freely consents to a search of his backpack (which contains incriminating evidence and agreed to talk about who gave him the package stowed within because he had no idea it contained drugs.

Failure To Flee – Here the argument is since the guilty flee – evidence on the decision not to flee is evidence of innocence.

Refusal To Plea Bargain The Case  – The defendant’s decision to reject all plea bargains is the best evidence of innocence – only the guilty take plea bargains.

Criminal Defenses and Theories Of Defense – The Good Faith Defense 

The Good Faith Defense turns on the lack of fraudulent intent. Like the Consciousness of Innocence defense – this defense relies on evidence demonstrating that a defendant’s actions were conducted under a sincere belief in the honesty of the business he or she was engaged in. Here evidence of innocence turns on actions on the part of the defendant that point to naiveté – actions such as efforts to assist the victims of the business that are inconsistent with a guilty mind. 

Criminal Defenses and Theories Of Defense – Following The Advice of Your Lawyer – Your Counsel

his defense is simple. My lawyer made me do it. The defense arises when an individual – in an abundance of caution – consults an attorney before undertaking his business to determine the legality of the business and then follows his lawyer’s advice.

If the lawyer testifies, this defense is very powerful. The defense can be successful but requires that a defendant fully disclose all relevant facts to the lawyer and then faithfully follows that lawyer’s advice.

Criminal Defenses and Theories Of Defense -The Defense of Agency 

Primarily used in drug distribution or purchase cases this defense relies – again – on the naivete of the defendant.  Here he or she acts as an innocent agent of the buyer of the drugs… not knowing that the exchange is illegal or perhaps unaware as to the contents of the package. This might be a situation where the defendant acted as a “mule” in transporting drugs without knowing they were drugs or without awareness that they were for other than personal use.

The defense is at best – weak – and works best if the defendant can prove that as a result of the relationship he had with the buyer – he did not benefit from the transaction. The motive then becomes friendship and not monetary gain.

Criminal Defenses and Theories Of Defense -The Alibi Defense In Colorado

The Colorado alibi defense is also simple. I was somewhere else at the time of the crime. While commonly used – it is often defeated with devastating effect at trial.

The alibi witnesses usually called are friends, lovers and family, such as the defendant’s mother – all of whom the jury recognize as hopelessly biased. Few of the witnesses can testify with specificity or can corroborate their stories. While the prosecution bears the burden of disproving an alibi defense and must prove guilt beyond a reasonable doubt, the jury has a tendency to place the burden of proof for an alibi defense on the defendant. The good news is – if they believe the alibi, they will acquit; the bad news – even in a weak prosecution case – if they don’t believe it they will convict in most instances.

An experienced and seasoned Colorado criminal defense lawyer will only rely on an alibi defense only if it can be corroborated with evidence from an independent source (e.g., a work time-clock, a highway electronic toll record, or an ATM receipt for a withdrawal on the defendant’s account). 

Criminal Defenses and Theories Of Defense – Other “Affirmative” Defenses 

Affirmative defenses (LINK) are defenses that do not negate the elements of the criminal offense or offenses charged, but rather offer a broader defense to the criminal charges. Essentially the defendant says – “Yes I did it – but I have a legal defense to my actions.” Examples include insanity, self-defense, justification, duress and entrapment.

The idea to deny guilt and offer an affirmative defense is risky and may be self-defeating.

Affirmative defenses, are risky for two reasons:

Like the alibi defense – although the law does not support this approach as a practical matter the jury will reject the affirmative defense unless the Colorado criminal defense attorney can persuade them of its truth.

Jurors reason that since this guy has admitted the crime, he’s now looking for an excuse to get out of “it” thus the affirmative defense – like a clear example of self defense – must be very compelling to work.

Finally the assertion of an affirmative defense at trial will  “open the door” to otherwise inadmissible evidence the prosecutor can now introduce to the jury to contradict or “in rebut” the defense. Some of this evidence can take the form of evidence of prior similar “bad acts” by the defendant.

Conclusion – the relationship between an experienced Colorado criminal defense lawyer and his or her client requires careful analysis of the facts and evidence of each case. Each case is unique and the decision to assert one or more of the defenses above turns on the clarity of communication between the parties – the wrong defense can have tragic consequences and professional experience in the courtroom is essential.

Please call our law firm if you have questions about ..

Criminal Defenses and Theories Of Defense

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277. 

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

H. Michael’s Primary Territory:

The Colorado Steinberg Criminal Defense Law Firm

…serves clients charged with criminal offenses in the Denver Metro Region and throughout Colorado, including Adams County, Arapahoe County, Boulder County, Broomfield County, Denver County, Douglas County, Jefferson County, Larimer County, El Paso County, Pueblo County, Weld County and Grand County; and communities such as ; Centennial, Denver, Boulder, Aurora, Lakewood, Littleton, Westminster, Thornton, Northglenn, Brighton, Greenwood Village, DTC, Denver Tech Center, Highlands Ranch, Castle Rock, Lone Tree, Englewood, Golden, Grand Junction and all across the Front Range.

Your freedom is too precious to entrust to someone with less experience.

If you have questions about Criminal Defenses and Theories Of Defense in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters as regards Criminal Defenses and Theories Of Defense.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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