QUESTION
Can fighting the legality of the law itself be a good criminal defense?
Asked on Nov 13th, 2011 on Criminal Law - California
More details to this question:
My lawyer is planning to fight my case based on the assumption that the law being used against me is bad. Could this work?
20 ANSWERS
Criminal Law Attorney serving Orlando, FL
4 Awards
Yes if the law is bad.
Answered on Jun 02nd, 2013 at 9:34 PM
Yes, that could work. It is generally a long shot, but sometimes the only shot. I always applaud creative lawyering.
Answered on Jun 02nd, 2013 at 9:34 PM
Transportation Attorney serving Mamaroneck, NY
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Palumbo & Associates, PC
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Yes.
Answered on Jun 02nd, 2013 at 9:34 PM
Criminal Defense Attorney serving Montrose, NY
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Law Office of Jared Altman
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Yes. If the law is illegal then you can't be prosecuted.
Answered on Jun 02nd, 2013 at 9:34 PM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Edward J. Blum
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Yes.
Answered on Jun 02nd, 2013 at 9:29 PM
Criminal Law Attorney serving Howell, MI
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Law Offices of Jules N. Fiani
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Yes.
Answered on May 31st, 2013 at 1:18 AM
Jacob P. Sartz
Generally, questions of legal strategy should be resolved between the lawyer and client. If a case ends up being appealed, an appellate attorney would have the requisite experience and training, and, with all the available information, to determine whether it was a viable strategy. Lawyers have a lot of professional discretion in determining the best approach. Ultimately, only certain approaches are viable in certain situations.
Answered on Nov 29th, 2011 at 5:17 PM
Daniel Kieth Martin
This is a great question. The answer is yes it could work however it is rare. Laws that are vague or ambiguous are unenforceable. Also, laws that are unconstitutional are unenforceable. This defense is difficult. Your lawyer is either a hard working attorney or naive, I hope it is the former not the latter.
Answered on Nov 28th, 2011 at 12:48 PM
3 Awards
Certainly. That's how new law is created. Better be a good attorney and be ready to take this up the appellate chain if you lose though.
Answered on Nov 16th, 2011 at 8:10 PM
Michael J. Breczinski
That depends on the particular law, the nature of your acts and many other facts that I have not been given. The answer is maybe.
Answered on Nov 16th, 2011 at 7:33 PM
Yes a law maybe determined to be unconstitutional. This is a very ambitious defense though.
Answered on Nov 16th, 2011 at 11:16 AM
Samuel H. Harrison
Depending on the law and the way it was written, it could be a very good approach. If there is no reasonable doubt you actually did an act that violates that law, it may be the only defense you have.
Answered on Nov 16th, 2011 at 10:37 AM
It can and has in the past. The degree of success would depend on what is being alleged to be wrong with the law.
Answered on Nov 16th, 2011 at 9:57 AM
Adoptions Attorney serving Lansing, MI
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Austin Legal Services, PLC
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Do you mean he is challenging the constitutionality of a law? That could be a good way to pursue the case if he thinks it is legitimate. Just keep in mind that will delay the case and could even have it tied up in court for years. Your attorney should know the best way to proceed.
Answered on Nov 16th, 2011 at 9:43 AM
Possible but very very very unlikely. You have to somehow argue that the law is unconstitutional. For that to happen it usually goes through several levels of court, up to the state Supreme Court. By that time you'll either be bankrupt from legal bills or so much time has passed that whatever sentence you had to serve will be the distant past.
Answered on Nov 16th, 2011 at 1:27 AM
Criminal Defense Attorney serving Santa Ana, CA
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Law Offices of Paula Drake
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It sounds like he is arguing that the law is unconstitutional; there could be several grounds for this e.g. that the law is too vague or ambiguous. He must think there are some issues, or he wouldn't waste time with it. It sometimes does actually work! Ask him to explain things to you, that is what he is there for.
Answered on Nov 15th, 2011 at 10:31 PM
Criminal Defense Attorney serving Fullerton, CA
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The Law Offices of John W. Bussman
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Impossible to say without a whole lot more information. A defense can be made by arguing that the law in unconstitutional, vague, ambiguous, preempted, etc., but I can't venture to guess how successful those arguments would be without knowing more about your case.
Answered on Nov 15th, 2011 at 10:31 PM
Assault Attorney serving Richardson, TX
2 Awards
Maybe. It depends on how he attacks the law. This must be a constitutional issue.
Answered on Nov 15th, 2011 at 9:04 PM
Criminal Defense Attorney serving Orange, CA
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Law Office of Joe Dane
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You don't say what the law is, what your challenge to it is and you're represented by an attorney. Yet you want an opinion about your legal position and whether or not what your attorney has planned will work? You really need to have a heart to heart with your lawyer.
Answered on Nov 15th, 2011 at 9:03 PM
Appellate Attorney serving University Place, WA
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Baner and Baner Law Firm
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What an incredibly vague question. It might be, and it might be your only real chance - hard to know. It is a very common tactic to try to overturn/expand existing precedent that often can work. HOWEVER, if you mean to say he is going to argue that your murder was excusable because you were exercising your First Amendment Rights to protest, then that is probably not a winner. Presumably your attorney has a good argument, but might not have explained it well to you (trust me that such things happen VERY frequently - particularly in criminal and family law matters).
Answered on Nov 15th, 2011 at 9:03 PM