Criminal Lawyer Midvale Utah

Criminal Defense Lawyer Midvale Utah

The federal government and the State of Utah have enacted statutes that regulate the possession, carrying, use, sale, manufacturing, importing and exporting of deadly weapons. Deadly weapons are typically defined as instruments that can be used or are intended to be used to cause death or serious bodily injury. Deadly weapons may include firearms, knives and explosives. Although the Second Amendment to the United States Constitution provides a right to bear arms, the government may, in certain instances, reasonably regulate the possession or use of firearms. Such regulations are usually designed to protect the health, welfare and safety of citizens who might be harmed by the uncontrolled possession and use of deadly weapons.
Some of the same issues that arise in drug possession cases also become relevant in weapons possession cases. For example, one may unlawfully possess a weapon either actually or “constructively.” Just as in the area of drug possession, constructive possession means having both knowledge of the weapon and the intent and ability to exercise dominion and control over it.

Unlawful possession of a weapon may also enhance the charge and penalty if the defendant possesses or uses a weapon during the commission of another offense. For instance, if a defendant commits a sexual assault and uses (or in some cases merely possesses) a deadly weapon while carrying out the offense, then the defendant may be charged with the sexual assault and the weapons offense. The addition of the weapons offense increases the punishment imposed on the defendant and is intended to deter individuals from committing crimes while using or possessing deadly weapons.
If you have been charged with unlawful weapon possession, contact an experienced Midway Utah criminal defense lawyer.

Arrest

For a defendant, the criminal process usually begins at the time of arrest. An arrest indicates that the police have probable cause to believe that the person being arrested has committed a crime. Probable cause means that the police officer believes there is a “fair probability” that the suspect has engaged in criminal activity. Thus, the officer doesn’t have to be certain that the suspect committed a crime in order to make an arrest. Probable cause may be developed by relying upon witness reports or observations of criminal activity or by conducting extensive police investigations into suspected illegal conduct.

Once arrested, the suspect is advised of his constitutional rights. These rights include the right to remain silent, the right to have an attorney present during questioning and the right to have an attorney appointed if the suspect is unable to afford one. The suspect is then booked, fingerprinted and photographed. As soon as possible after the arrest, the suspect is taken before a judge or magistrate and advised of the charges against him. At this time, the judge or magistrate may also make a determination concerning the pretrial release of the suspect. Depending upon the nature of the crime and the risk of flight, the suspect may either be detained without bail, detained pending the posting of a specific bail amount or released on his own recognizance, which means that the suspect simply promises to return to court for further proceedings in the case.

Indictment And The Grand Jury Process

In some cases, prior to an arrest, a grand jury will be convened to investigate suspected criminal activity. The grand jury is composed of a group of lay citizens who are charged with the responsibility for gathering information and determining whether probable cause exists to issue an indictment or formal charge against anyone. The grand jury has significant investigatory power and can subpoena witnesses and documents on a fairly broad scale as it carries out its functions. Subpoenaed witnesses must appear before the grand jury and bring any subpoenaed documents with them. Additionally, witnesses are not permitted to bring counsel into the grand jury room, although they may leave the room to consult with counsel on specific questions. Failure to comply with a grand jury subpoena may result in sanctions for contempt, which could include a period of incarceration until the witness agrees to comply with the grand jury request. These types of grand jury investigations often result in the issuance of an indictment, which then requires the police to formally arrest the person(s) named in the indictment. Grand jury investigations of this nature are particularly useful for investigating large-scale criminal activity that is often associated with white- collar crime (e.g., securities fraud, tax fraud). Again, because the grand jury has broad subpoena power and can demand testimony and documents, it can use relatively unrestricted investigative techniques that are, for the most part, constitutionally unavailable to law enforcement officers.

The grand jury process may also be used after the arrest of a suspect in some cases. Typically, these grand jury proceedings are initiated and led by the prosecutor who believes that a crime has been committed and presents the government’s evidence against a specific suspect to the grand jury. Because the government’s evidence is presented unchallenged, in all but the weakest cases, the grand jury finds probable cause to issue an indictment against the suspect.

Grand jury proceedings and the identities of the grand jurors are guarded with the utmost secrecy. The secrecy is intended to protect the grand jury in its fact-finding process by ensuring that grand jurors are free from external influences that might affect the impartiality of the decision-making process.

In some cases, in lieu of the grand jury indictment process, the prosecutor may file an information with the court. The information, which is used primarily in less serious cases, is a formal written statement of the charges against the defendant and serves the same purpose as a grand jury indictment. It is important to understand that neither the issuance of an indictment nor the filing of an information means that the defendant is guilty of the crime. These are merely formal statements of the charges that must be proven at trial.

Arraignment And Pretrial Motions

Once the indictment or information has been issued or filed, the defendant is brought before the court to be formally charged with the crime. This proceeding is called the arraignment. During the arraignment, the charges are read in detail to the defendant, who is asked to formally enter a plea to the charges. At the arraignment, the court will also insure that the defendant is represented by counsel and may hear arguments for and against setting or reducing bail for the defendant’s release pending trial.

If the defendant pleads guilty at the arraignment, the court will carefully question the defendant to determine whether the guilty plea is being made knowingly and voluntarily. The court is essentially seeking to ensure that no one has improperly coerced the defendant to enter a guilty plea. The court will also instruct the defendant that by pleading guilty, he or she is waiving the right to a trial and choosing to proceed immediately to the penalty phase of the criminal process. If the court is satisfied that the defendant is voluntarily entering a plea of guilty, a date will be set for sentencing. Defendants who do not choose to plead guilty at the arraignment will have their cases scheduled for trial during the arraignment proceeding.

Once a case is scheduled for trial, both the prosecution and defense begin to plan their strategies. The defense strategy may include challenging the government’s collection of evidence against the defendant on constitutional grounds. To carry out this strategy, the defendant may file motions to suppress evidence, arguing that the evidence was seized in violation of the Fourth Amendment or that incriminating statements were obtained in violation of the Fifth or Sixth Amendment. Depending upon the outcome of these motions to suppress and the nature of the evidence suppressed, the government’s case may not be able to proceed and the case against the defendant may have to be dismissed. For example, if a defendant is charged with narcotics trafficking and the narcotics evidence is successfully suppressed because of an unlawful search of the defendant’s home, the government will not be able to proceed with the case because a crucial and necessary piece of evidence will be excluded from the case.

During the pretrial process, the government and defense have certain obligations with respect to sharing evidence. For example, the government is obligated to share information that tends to show that the defendant might not have committed the crime. Additionally, both sides must give notice of potential witnesses and experts to be called during the trial, and the defendant must provide notice as to whether certain defenses, such as the insanity defense, will be presented during the trial. This pretrial exchange of information is intended to allow both sides to fairly and adequately prepare and present their cases and avoid the disruption and surprise associated with “trial by ambush.”

Trier of Fact: Judge or Jury

The defendant may elect to have his case tried before a judge or a jury. If he chooses to have it tried only by a judge, then the judge hears all of the factual evidence, makes evidentiary rulings during the trial and renders a verdict at the conclusion of the case. If, however, the defendant chooses to have the case tried before a jury, then the jury selection process is the first phase of the criminal trial.

In Utah, potential jurors are selected from voter and license registration lists. From this broad pool, both the defense and prosecution attempt to identify jurors who can listen to the evidence in an unbiased fashion and render a verdict based solely upon the evidence submitted at trial. The process of questioning and selecting jurors is called voir dire. During this process, the defense, the prosecution and occasionally the judge will ask questions of potential jurors in an attempt to expose any biases or preconceived notions that might interfere with their ability to render a fair and impartial verdict. During the voir dire, each side (the defense and prosecution) may request that prospective jurors be excused from the case either for cause (e.g., bias) or, in limited instances, for no reason at all. Requesting that a juror be excused without providing a reason is known as exercising a peremptory challenge. Each side has a limited number of peremptory challenges and may use them to excuse jurors for practically any reason except race and gender.

Opening Statements

Once the jurors have been selected, the trial begins with opening statements by the government prosecutor. The defendant comes into the trial with a presumption of innocence, and the government has the burden of proving each of the material elements of the crime beyond a reasonable doubt. During opening statements, the prosecutor usually begins by explaining the government’s theory of the case to the jury. The prosecutor will articulate how the government’s evidence will establish that a crime was committed and that the defendant is the perpetrator of the crime. After the government’s opening statement, the defense presents its opening statement and theory of the case. This is the first opportunity for the defendant to refute the government’s theory of the case and set the stage for alibi or other types of defenses (e.g., self-defense, insanity). During the opening statements, no evidence is introduced, and each side explains its theory of the case in a narrative fashion.

Presentation of Evidence

After the opening statements, the presentation of evidence begins with the government’s case-in-chief. Since the government carries the burden of proof, the prosecutor will begin by introducing evidence on each of the material elements of the offense in an attempt to establish the defendant’s guilt beyond a reasonable doubt. The evidence presented is usually testimonial in nature and is introduced by calling witnesses to the stand. Evidence might also consist of documents, which will be introduced into evidence through witness testimony that verifies the authenticity and accuracy of the documents. Since most crimes are committed in secret with very few direct eyewitnesses, in most cases, the government must build its case piece by piece using circumstantial rather than direct evidence.

Utah criminal law process is complex. If you have been charged with a crime in Utah, contact an experienced Midway Utah criminal defense lawyer.

Midvale Utah Criminal Lawyer Free Consultation

When you need legal help with a criminal case in Midvale Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with Sex Crimes, Drug Crimes, Assault Crimes, DUIs, and more. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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If you have been charged with a crime based on your action as a player during a sports event, contact an experienced Midvale Utah criminal defense lawyer.

In order to apply criminal law sanctions for undesirable conduct, the act that will incur penalties must first be defined — and in a way that insures predictability. This issue is especially difficult in the area of sports violence. Certain sports involve a great deal of physical contact and intimidation. Therefore, a certain amount of very physical but legal contact may be considered part of the game. The problem is in drawing a neat and predictable line as to when an act goes beyond the scope of the game and becomes criminal in nature.

The crime of battery is the offense that most often applies to sports violence. A battery can be defined as an unlawful application of force to the person of another resulting in bodily injury. The requirement that the battery be “unlawful” is the key to the exemption of sports-related batteries. Although the issue is often couched in such legal terms as consent or assumption of risk, the crux of the problem in distinguishing sports violence from criminal acts is unlawfulness. Society has seemingly exempted sports violence from the criminal law by treating it as lawful. The elements of a battery are (1) a “guilty” state of mind, (2) an act, (3) a physical touching or harming of a victim, and (4) causation — that is, the act must cause the touching or harm. The state of mind for a battery does not require actual intent. An extreme conscious disregard of known serious risks, called criminal negligence, will suffice. The Utah criminal statutes define some acts as aggravated battery and punish them as felonies. For example, the use of a deadly weapon or the causing of serious bodily injury are examples of an aggravated battery. Interestingly enough, ordinary objects can qualify as deadly objects if they are used in a way that can cause death. Hockey sticks, baseballs, and football helmets may qualify as deadly objects. Battery, of course, is not necessarily the only crime that might occur in the sports world.

Sports violence presents difficult issues in drawing the line between conduct that is accidental or within the rules of the game and conduct that is criminal. The problem is that certain sports are extremely physical, and violent physical contact is condoned under the rules. Thus, recalling the legal definition of a criminal battery as discussed previously, the act which is a crime on the streets becomes legal in the arena, and the illegality element of the definition of battery is negated. Only the most heinous acts that occur in contact sports such as football, hockey, and basketball fall beyond any possible justification under the scope of the game that legalizes violent contact.

Two major defenses are available to a defendant in a criminal prosecution involving sports violence: consent and self-defense. Consent is not normally a defense to a criminal act. The general rule is that one cannot consent to be the victim of a crime, and this rule is true except for certain specific exceptions; those exceptions are crimes in which a lack of consent forms one of the elements of the crime. For example, a successful prosecution for rape must include proof that there was a lack of consent on the part of the victim.

Sports violence, specifically the crime of battery, falls in a more difficult area to define compared with nonsports-related violence. Battery is not a crime that has lack of consent of the victim as an element, but, in certain battery cases, the unlawful-application-of-force element is not present because of consent.

The most difficult issue concerning the consent defense is drawing a line between reasonably foreseeable hazards that may be consented to and unreasonably foreseeable hazards that are not consented to. One of several different approaches on how to draw the line concerns looking at the normal violence associated with the sport. This means defining the scope of consented-to physical contact in a particular sport so that a participant in that sport would not be deemed to consent to acts that go beyond that scope.

The rules-of-the-game test is an alternative approach to the consent issue. A participant victim would not be deemed to have consented to acts that were illegal under the rules of the sport. This is a much weaker standard that would lessen the types of violence subject to a successful consent defense. On the other hand, the rules-of-the game approach is also an easier test to apply.
Some courts apply a test that looks toward the seriousness of the injury for a solution. This is a simplistic approach which reasons that the victim cannot be said to have consented to a grave injury. Another approach is “the reasonable foreseeability test,” which is commonly used in the area of torts. Under this test, a participant would only be held to have consented to those acts of violence that were considered a reasonably foreseeable part of the sport.

Finally, it should be noted that in addition to the above tests, the assumption-of-risk doctrine of tort law is often discussed in the area of consent to criminal acts (see Section 6.125[d]). Assumption of risk is very similar to the consent defense. A participant in a contact sport assumes the risk of violent contact and consents to the contact. But any injury that is serious enough to raise the specter of criminal prosecution should exceed the risk assumed by the participant. Therefore, the assumption of risk doctrine does not really add any useful analysis to the problem of the consent defense to battery.

The second major defense to a charge of battery is self-defense. The non-aggressor in a violent incident may use a reasonable amount of force against the aggressor when there is reason to believe that an immediate danger of harm is imminent and that the use of force is required to avoid this danger. In the area of sports violence, such a defense may not be available for a number of reasons.

A successful showing of self-defense must prove that the force used by the non-aggressor was no greater than that used against him. Usually, for example, a case will involve escalating violence, such as when a hockey player punches an opponent and the opponent strikes back with his stick. This may cause some difficulty in determining when “reasonable force” has been used. Another problem is the requirement that the defendant have the honest belief that danger of immediate, serious, bodily injury is imminent. In many cases, the possibility of an honest belief is discredited because often the defendant provoked the attack, and this negates a self-defense argument. Finally, some jurisdictions would further limit the defense to those cases in which the defendant had no reasonable means of retreat. Therefore, a player who could have avoided seriously injuring another by breaking off the confrontation would not be able to plead self-defense.
Other factors can relieve a defendant of responsibility for a crime, even though they are not true “defenses.” Thus, even though the prosecution proves each and every element of the crime charged, the defendant can escape punishment by showing that he acted in the heat of passion or was intoxicated. A person who acts as the result of an involuntary action may not have the mental element that is required under the definition of the crime. For example, murder that occurs under extenuating circumstances, such as discovering one’s spouse in bed with another, will be reduced to the lesser charge of voluntary manslaughter. Under certain circumstances, the heat of passion aroused in the defendant diminishes the responsibility for the criminal act.

The American devotion to the legality principle arises from rationales unrelated to, and often in conflict with, blameworthiness.

Procedural Fairness

Fairness requires that a person have at least an opportunity to find out what the criminal law commands. Actual notice is not required for liability; it is enough that the prohibition has been lawfully enacted. Similarly, a defendant’s actual knowledge that the conduct is prohibited and punished does not vitiate a legality-based defense. The concern of the legality principle is procedural fairness, not blamelessness.

Report and Investigation

The criminal justice process usually begins with a report of a crime by a citizen or a police officer. Typically an investigation follows to determine whether a crime has in fact been committed and, if so, by whom. Once a suspect has been identified, the investigation may continue in order to collect evidence for use in prosecution.

Arrest and Booking

When a police officer believes that there exists “probable cause” to think that a crime was committed and that a particular suspect committed it, the officer may arrest that suspect. Sometimes the evidence is presented to a magistrate beforehand and a judicial warrant to arrest is obtained, but most arrests are made without a warrant. An arrest is essentially a taking of physical control over the person and usually includes a search of the person for weapons, contraband, and evidence relating to the crime. The arrestee is then taken to the police station, where he or she is “booked.” This procedure consists of entering the arrestee’s name, the time, and the offense charged in a police log. The arrestee is photographed and fingerprinted, informed of the charge, and allowed to make a telephone call. Those charged with minor offenses are allowed to post cash security as “station-house bail,” which allows them to leave the police station with a promise to appear before a magistrate at a specified date. Persons who are arrested for more serious offenses or who are unable to post station-house bail are sent to a “lockup” after another more careful search, including an inventory of their personal possessions.

Precharge Screening

The first of many reviews of the charging decision is frequently made at this point. A higher ranking police officer may reduce or drop the charges for which a suspect was booked. This may occur either because the evidence is insufficient to proceed or because an informal disposition— perhaps including a lecture and warning— is more appropriate. Ten to 20 percent of all cases are dropped from the system at this point. A member of the prosecutor’s office also may screen the cases during this stage, although this frequently occurs only in felony cases.

Filing The Complaint

If it is determined that the prosecution will proceed, formal charges are filed with the court via a “complaint.” This document briefly describes the facts of the case and is sworn to by the complainant, likely to be either the victim or the investigating officer. The affiant (or person giving the affidavit) can swear only to the facts known to him or her, of course, so a complaint by the investigating officer is likely to contain only claims about what the officer believes or what others reported. A magistrate will review the complaint ex parte (without the presence or participation of the parties) to determine whether probable cause exists to believe that the “defendant,” as he or she is now called, committed the offense charged. If the magistrate is not satisfied that there is probable cause, he or she will dismiss the complaint, but without prejudice— that is, the prosecutor may amend and refile the complaint in the future. Where an arrest warrant was previously obtained on the basis of a complaint, this step will, of course, already be complete; the defendant will be taken directly from booking to the initial appearance.

Initial Appearance In Court

Soon after a person is arrested and booked, unless released on station-house bail, he or she is brought before a magistrate. The magistrate confirms that the arrestee is the person named in the complaint and informs the arrestee of his or her constitutional rights, including the right to remain silent, the right to have counsel, and the right to have counsel appointed if he or she cannot afford one. Frequently, counsel is appointed at this stage.

Bail Out Of Jail

The magistrate at the initial appearance also reviews any bail conditions previously set at the station house and sets bail for those arrestees who did not previously have it set. High bail amounts typically require the services of a professional bondsman to ensure the defendant’s appearance, to whom the defendant must pay a non-refundable or only partially refundable fee. Increasingly, defendants have been allowed to pay, in cash, an amount equal to 10 percent of the total bail amount, which is then refundable if the defendant appears as directed.

Utah criminal law is complex. If you have been charged with a crime, contact an experienced Midvale Utah criminal defense lawyer.

Midvale Utah Criminal Defense Attorney Free Consultation

When you need legal help for criminal charges in Utah, call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with Theft, Burglary, Fraud, Sex Crimes, Drug Crimes and More. We are Accepting New Clients. We want to Help You.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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