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Elemental!

Updated: Apr 14

Clayton T. Robertson (RobertsonLitigation.com) (Criminal Defense Attorney)


When evaluating your criminal case, including when evaluating your lawyer's approach to your case, you should familiarize yourself with the elements of the offenses with which you have been charged. The "elements" are the specific facts or issues a prosecutor must prove beyond a reasonable doubt for a jury to find you guilty. Naturally, a good lawyer should review these elements with you at one of your initial consultations. (Red Flag: If your lawyer doesn't interview you at some length regarding the alleged offense(s) after you retain them, and doesn't ask you questions that draw out factual details relating to the elements of the offense(s) with which you've been charged, you need to follow up with your attorney. This might sound "nerdy," but it's true.)


Indeed, ultimately, in any negotiation with a prosecutor, no matter how good the relationship is between the prosecutor and defense attorney (and, yes, relationships matter), prosecutors generally respond best to arguments that highlight the potential weaknesses in their case. While some defense attorneys might hold back such "evidentiary gaps" in anticipation of trial, when you as the client are eventually paying for a trial, as many attorneys do as a separate legal fee, you should speak with your attorney about their approach. Are they negotiating with the prosecutor as zealously as they could with full knowledge of all the potentially helpful details about what may (or may not) have happened? (While you're at it, you should ask your attorney about the "discovery" they've obtained from the prosecution that often allows your attorney to better negotiate your case. "Discovery" consists of all the information the prosecution team has collected or knows about your case, which they have a duty to provide to your attorney.)


Incidentally, another reason for your attorney to obtain as many details as possible from you about what allegedly occurred, is to allow them to better evaluate not just the elements of the offense(s), but also other details about the arrest, including potential legal issues concerning whether the search and/or arrest were lawful. (More on these topics in subsequent posts.)


Here is a link to the most recent (2021) "CALCRIM" jury instructions (containing the elements and related case law). After you download the PDF file, you can search for the specific offense(s) with which you've been charged. (There is also a "supplement" on the same page that affects some charges, but not others.)


https://www.courts.ca.gov/partners/312.htm






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