Do I Have a Defense by Vincent Riveraby Kansas Criminal Defense Lawyer, Vincent Rivera
You can break your defenses down into two categories legal defenses and factual defenses.
A factual defense is something like “I didn’t do it some other guy did it.”
A legal defense is based on legal grounds you’re saying basically that either the police or maybe the prosecutors had violated your rights or are violating your rights in this prosecution.
So a common example would be if it was an illegal search, if you were searched without probable cause, or if police obtained a statement from you that was under duress or was coerced out of you.
There can also be legal defenses with how you’re charged and things like double jeopardy maybe the statute is unconstitutional.
Then we would come back and we would file a motion to suppress.
Arguing that that evidence should not be used against you because it was obtained in violation of your rights.
All legal defenses are going to be addressed by the judge before we get to trial.
Self-defense is kind of a hybrid between a factual and a legal defense.
Under the law, you are entitled to use force to defend yourself.
Under the law, you are entitled to use force to defend another person.
Under the law, you are entitled to use force to defend your property.
But no matter which one of these scenarios is the question is whether the force you used was reasonable.
We give you an example if I’m walking down the street and someone snatches my cell phone I can’t take out a gun and shoot them.
If I’m walking down the street and somebody pulls a gun on me to try to rob me. I’m probably okay to break their arm, probably okay to pull a gun back on them.
When you raise a self-defense claim you are giving something up because you are admitting guilt.
You’re essentially saying I am guilty of the battery but it was justified because it was self-defense.
And so by admitting to it now the burden of proof is shifting onto us. By shifting the burden of proof now we have to prove two main things.
Number one that you reasonably believed that that person was going to hurt you, hurt someone else or interfere with your property.
Number two that the amount of force that you used against that person was reasonable.
when you hire an attorney it’s important that that attorney discusses with you all of your defenses. What legal defenses you have and what factual defenses you have.