Self Defense

Self-defense is a countermeasure that involves defending oneself, one's property or the well-being of another from physical harm. The use of the right of self-defense as a legal justification for the use of force in times of danger is available in many jurisdictions, but the interpretation varies widely. To be acquitted of any kind of physical harm-related crime (such as assault and battery and homicide) using the self-defense justification, one must prove legal provocation, meaning that one must prove that he was in a position in which not using self-defense would most likely lead to death or serious injury. The threat of damage or loss of property alone is not enough.

The right of self-defense is the right for civilians acting on their own behalf to engage in violence for the sake of defending one's own life or the lives of others, including the use of deadly force. In most jurisdictions, defense of self or of others is an affirmative defense to criminal charges for an act of violence. It acts to provide complete justification. Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all. The defense of justification affirmatively permits the use of force under certain circumstances. The defense does not operate to "excuse" a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful. In this regard, the current statutory defense reflects the common-law "right" of an individual to repel a threat to life or limb. Defense deemed a natural, inalienable right at common law. (People v. McManus, 67 N.Y. 2d 541, 496 N.E. 2d 202, 505 N.Y.S 2d 43, 1986). The defense of justification would fail, for example, if a defendant killed a petty thief who did not commit robbery and who did not appear to be a physical threat. However, the owner or lawful possessor of the property has a privilege to use any degree of non-deadly force necessary to protect his possession or recover his property, regardless of the no physical threat to his person. The rules are the same when force is used to protect another from danger. Generally the defendant must have a reasonable belief that the third party is in a position where they would have the right of self-defense.

Burden of Proof

The burden of proof is the burden of providing sufficient evidence to shift a conclusion from an oppositional opinion. Whoever does not carry the burden of proof carries the benefit of assumption. Whoever bears the burden of proof must present sufficient evidence to move the conclusion to their own position. The burden of proof must be fufilled by both establishing positive and negating oppositional evidence. There are two primary burden of proof considerations: 1. The question of whom the burden rests. 2. The question of the degree of certitude the proof must support. This depends on both the quantity and quality of evidence and the nature of the point under contention. Some common degrees of certitude include the most propbable event, reasonable doubt, and beyond the shadow of a doubt. Beyond reasonable doubt is the highest standard used as the burden of proof and typically only applies in criminal proceedings. It has been described as, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise. If there is a reasonable doubt based upon reason an dcommon sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case then the level of proof has not been met. Beyond a shadow of a doubt is the strickest standard of proof. Widely considered an impossible standard, a situation stemming from the nature of knowledge itself, it is valuable to mention only as a comment on the fact that evidence in a court never need, nor can, reach this level. This phrase has nonetheless come to be associated with the law in popular culture.

Duress

In duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat, or other pressure against the person. The definition is defined as "any unlawful threat or coercion used to induce another to act (or not act) in a manner they otherwise would not (or would). Duress is pressure exerted upon a person to coerce that person to perform an act that they normally would not perform. Duress has two aspects; One that it negates the person's consent to an act (such as a sexual activity or entering into a contract) or secondly, as a possible legal defense or justification to an otherwise unlawful act. As a defense, a defendant is arguing that he or she should not be held liable because, even though the act broke the law, it was only performed because of extreme unlawful pressure. For duress to qualify as a defense, four requirements must be met:
-The threat must be of serious bodily harm or death
-The threatened harm must be greater than the harm caused by the crime
-The threat must be immediate and inescapable
-The defendant must have become involved in the situation through no fault of his or her own.
With the defense of duress it is actually attaching some degree of culpability to the defendant for what was done. The basis of the defense is that the duress actually overwhelmed the defendants will and would also have overwhelmed the will of a person of ordinary courage, thus rendering the entire behavior involuntary; therefore the liability should be reduced or discharged. The extent to which this defense should be allowed, if at all, is a matter of public policy. A state may say that no threat should force a person to deliberately break the law, particularly if this breach will cause significant loss or damage to a third person. Alternatively, a state may take the view that even though people may have ordinary levels of courage, they may nevertheless be coerced into agreeing to break the law and this human weakness should have some recognition in the law.

Replevin

Replevin, sometimes known as "claim and discovery", is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the plaintiff at the outset of the action (such as before judgment). In other situations, a party seeking relief may elect to adjudicate the right to possession prior to obtaining immediate relief to obtain the property in question. In such cases, replevin actions are still designed to afford the petitioning party a relatively speedy process for obtaining judgment, as compared to typical lawsuits. The summary remedy afforded by replevin statutes can be thwarted by defendants who contest the claimant's right to possession, by contesting the plaintiff's complaint, and insisting on traditional litigation involving discovery, and in some cases, trial by jury.

Replevin actions are often filed by secured creditors seeking to take possession of collateral securing loans or other debt instruments, such as retail installment contracts. A common example is where an automobile finance company initiates a replevin action to gain possession of a vehicle, following payment default. Replevin actions are usually employed when the lender cannot find the collateral, or cannot peacefully obtain it through self-help repossession.

Criminal Law

Criminal law, or penal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is prohibited by the state because it is held to threaten, harm, or otherwise endanger the safety and welfare of the public and that sets out the punishment to be imposed on those who breech these laws. It is distinctive for the uniquely serious potential consequences or sanctions for failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as a part of parole or probation regimen. Fines may also be imposed, seizing money or property from a person convicted of a crime. In criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal liability. Besides contesting the accuracy of any allegation made against him or her in a criminal proceeding, a defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable. Since a defense is raised in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof. In any case you always need to bring your best defense so let the Law Office of Samuel P. Bennett represent you.