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Tulsa criminal defense attorney Stephen Cale talks about additional constitutional limitations on making criminal statutes. For an aggressive criminal defense attorney, call the Cale law office at 918-277-4800.
In addition to the constitutional requirement that a criminal statute be sufficiently specific to provide fair warning and prevent arbitrary enforcement, article one of the U.S. Constitution places substantive limitations on both federal and state lawmakers.
Ex post facto laws
The Constitution expressly prohibits ex post facto laws. The US Supreme Court has defined an ex post facto law is one that operates retroactively to: 1) make criminal act an act that when done was not criminal; 2) aggravate a crime or increase the punishment of the criminal act; 3) change the rules of evidence to the detriment of criminal defendants as a class; or 4) alter the law of criminal procedure to deprive criminal defendants have a substantive right. Certainly, you want the best Tulsa criminal defense attorney for your case.
No bills of attainder
Bills of attainder are also constitutionally prohibited. A bill of attainder is a legislative act that inflicts punishment or denies a privilege without a judicial trial. Although a bill of attainder may also be an ex post facto law, a distinction can be drawn and that an ex post facto law does not deprive the offender of a judicial trial.
Interpretation of criminal statutes
Sometimes courts will have to interpret a criminal statute. There are five rules for interpretation. The first rules the plain meaning rule. When the statutory language explains its meaning is clear, the court must give its effect to it even at the court fills but the law is unwise or undesirable. The exception to this rule exists the court believes that applying the plain meaning of a statute will lead to injustice, oppression, or an absurd consequence.
Ambiguous statutes construed in favor of defendant
The rule of lenity requires that an ambiguous criminal statute must be based strictly construed in favor of the defendant. Ambiguity should be distinguished from vagueness. An ambiguous statute is one susceptible to two or more equally reasonable interpretations. A vague statute is one that is so unclear as to be susceptible to no reasonable interpretation.
Express you only use, exclusio alterius
According to this maximum, the expression of one thing implies an intention to exclude another. Take this example criminal statute defines bigamy as the act of remarriage by one who has a living spouse. Statute expressly provides an exception for one who spouse disappeared more than seven years before. Can a person remarry if a spouse has been gone for less than seven years provided he or she believes in good faith that the spouse is dead? Most chair stations say no. The fact that the statute provides one exception implies that excludes all other exceptions.
Specific controls general. More recent controls earlier
two statutes address same subject matter but dictate different conclusions, the more specific statute will be applied rather than the more general. The more recently enacted statute will control an older statute. Here’s an example statute number one prohibits all forms of gambling and another permits charity sponsored raffles, the latter will control a church raffle because it is more specific. As another example a 2010 statute any advertising of severance will govern a 1990 statute providing a limit on advertising expenditure by cigarette manufacturers.
The effect of repeal
At common-law, in the absence of a saving provision, the repeal or invalidation of a statute operates as a bar to prosecutions for earlier violations, provided that the prosecution is pending or not yet underway at the time of the repeal. However, I repeal will not operate to set free a person who has been prosecuted and convicted and has to the judgment has become final. Many statutes include a provision to the effect that crimes committed prior to the effective date of the new statute are subject to prosecution and punishment under the law as it existed at the time of the offense was committed. This is called a saving provision.
Another rule of criminal law is the doctrine of merger. For example merger of solicitation or attempt into a completed crime.
Someone who solicits another to commit a crime (or solicitation itself is a crime) cannot be convicted of both the solicitation and the completed crime (if the person solicited completes it). Similarly, a person completes a crime after attempting it may not be convicted of both attempt and completed crime. Conspiracy, however, does not merge with the completed offense (for example one can be convicted of robbery and conspiracy to commit robbery).
Lesser included offenses merge into greater fences in the sense that one placed in jeopardy for either fence may not later be retried for the other. Nor can a person be convicted both a greater fence a lesser included offense. A lesser included offense is one that consists entirely of some but not all elements of a greater crime.
Here’s an example and defendant allegedly possess certain drugs. On the basis of this, he is charged with 1) a little possession of drugs 2) illegal possession of our collects for sale, and 3) possession of a drug without a tax stamp. The person may not be convicted of all three offenses because each requires proof of something the other does not, i.e., intent to sell using improper container.
A good Tulsa criminal defense attorney will also know certain elements crime. Generally speaking, there are four parts to a crime. One is called the actus reus or the guilty act. This is a physical act or unlawful admission on the defendant. Secondly the guilty mind or mens rea. This is the state a minor intent of the defendant at the time of his act. Thirdly, there must be concurrence. This means the physical act of a mental state existed same time. And lastly, harmful result in causation. The harmful result must have caused both factually and proximately by the defendant’s acts. Almost all crimes require physical act may require some sort of intent. Crimes also require proof of certain attendant circumstances without which the same act and intent would not be criminal. For example, the crime of receipt of stolen property requires of the property received as in fact been stolen. If the defendant receives property that he believes to have been stolen when in fact the property has not been stolen, the absence of this required circumstance renders the defendant not liable for receipt of stolen property. Other crimes require resulting consultation. An unjustified homicide, for example, requires that the victim die and that the defendants act because of the death.
If you’ve been charged with a crime, call Tulsa criminal defense attorney Stephen Cale at 918-277-4800.