Sunday Morning Criminal Defense Top 10 Q&A

This morning I was going through some old articles, books, and video with the hope of coming up with some ideas for something new for 2016 (which is only about 5 months away)!


While doing this research I came up with 10 questions that seemed to appear most often in my writings. If you would like to explore these topics in further detail, I encourage you to read my old blogs, watch my videos, or read my books. For now, here is my top 10

  1. What is the defense’s responsibility in a criminal proceeding
    1. Technically, the defense doesn’t have to do anything but enter a plea of guilty, not guilty or no contest.   If, however, you chose this approach to your defense you will get exactly what the prosecution wants to give you which isn’t much. This type of strategy could result in substantial fines, an extended period of probation, prison!


  1. What is the prosecution’s burden of proof at a trial?
    1. The burden of proof in all criminal cases in guilt beyond a reasonable doubt. This differs from the burden in civil cases (personal injury, medical malpractice) which is “by a preponderance of the evidence.” There is substantial difference between these 2 standards. While it is much more difficult to be found guilty at criminal trial than to lose a civil case, you need an attorney who is going to constantly remind a jury of this distinction.


  1. What is a preliminary hearing?
    1. An initial evidentiary hearing that uses a “more probable than not” standard which closely resembles the civil standard of proof. All hearings before a judge are not to determine guilt. While this hearing will not determine guilt, it’s still important because it could result in the dismissal of charges, the downgrading of charges or at the very least setting up pre-trial motions—ie motions to quash or motions to suppress evidence.


  1. What is the burden of proof at pre-trial motions
    1. Pre-trial motions are not trials. They often look like trials because witnesses give testimony, judges hear arguments and attorneys argue the law. At the hearings however the court is often determining the admissibility of evidence.
  2. What is reasonable doubt?
    1. It is the type of doubt that will cause a judge or jury to acquit you of criminal charges. A judge will tell a jury prior to its deliberation that reasonable doubt is the type of doubt that would cause a person to have pause prior to making a decision of great importance.


  1. What is the difference between circumstantial and direct evidence
    1. Direct evidence is something that a witness observes—eyewitness testimony. Circumstantial evidence is based on inferences and assumptions. The most common example is entering a building when the ground is dry, coming out of the same building and you find the ground wet. This is circumstantial proof that it has rained.
  2. What is the difference between actual and constructive possession
    1. There is actual possession when it’s found on your person (i.e. in your pocket). There is constructive possession when its found in your area of immediate control (in your car or in your house while you were there or strong evidence to suggest that you had been there)


  1. What is a Motion to Suppress Evidence?
    1. A pre-trial motion based on a violation of your 4th, 5th and 6th amendment rights against illegal search and seizure, and unlawful incriminating statements. If successful this motion will exclude evidence from trial that could result in this dismissal of the case or a finding of not guilty because of lack of evidence.
  2. What is a Motion to Quash?


  1. A motion that argues that the Commonwealth has not met its burden at a preliminary hearing or a grand jury. This is a very difficult motion for the defense.


  1. What are the degrees of crime in Pennsylvania?


  1. The Pennsylvania crimes code organizes crimes into three categories: felonies, misdemeanors, and summary offenses. Felonies and misdemeanors are further to find based on the severity of the offense. There are three degrees of felonies and three degrees of misdemeanors. The categorization of a specific crime is not always clear and is sometimes based on the seriousness of the offense, the accused’s prior record, and the factual circumstances surrounding the case.


  1. Felonies are the most serious crimes and include the longest prison terms. A felony of the 1st degree carries with it a maximum 20 year prison sentence and includes drug distribution, drug trafficking, and certain types of aggravated assault. A felony of the 2nd degree carry a maximum prison term of 10 years and include crimes such as sexual assault, burglary, and arson. A felony of the 3rd degree have a maximum prison sentence of seven years and include certain firearm offenses, major thefts, and certain drug offenses.


  1. While some states classify misdemeanors as crimes with a maximum prison sentence of one year in a county jail, Pennsylvania law allows punishments for misdemeanors to exceed one year period. First degree misdemeanors carry a maximum sentence of five years in prison and include offenses such as simple assault, driving under the influence, and terroristic threats. Second degree misdemeanors have a maximum prison term of two years and include crimes such as retail theft, fraud, shoplifting, and bad checks. Third degree misdemeanors have a maximum one year prison sentence and include crimes such as petty theft and marijuana.


  1. The least serious crime classification in Pennsylvania is a summary offense. These offenses include crimes such as disorderly conduct, underage drinking, and certain traffic offenses. While a term of imprisonment in these matters is highly unlikely, there is a maximum term of 90 days in a county jail.

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