David Serna Talks About Aggravating and Mitigating Factors

The terms “aggravating” and “mitigating” factors usually come up when reading about criminal charges and their penalties. Aggravating factors help judges develop proportional and consistent sentences with the defendant’s offense severity and history. These details can affect the penalties, so David Serna believes defense lawyers must explain it to their clients.

 

On the other hand, mitigating factors can support leniency in the defendant’s sentencing. Although criminal statutes pay less attention to mitigating factors, David Serna believes defense lawyers should still present them to the court. Courts will hold this evidence relating to the defendant’s character and introduce them, provided they are relevant to the sentencing process.

 

What aggravating factors do judges consider?

Aggravating factors often include any relevant factors that make a case’s outlook more severe or severe. Some details include the following:

●     Evidence of prior planning

●     Targeted vulnerable victims

●     Previous conviction or convictions, particularly of severe offenses,

●     The committed crime was part of an organized criminal group

●     The offender intended more severe harm than the result

●     Financial or material gain motivated the offense

●     The offender attempted to frustrate or impede the administration of justice

●     There were multiple victims or incidents

●     The offender used weapons to frighten or injure victims

●     The offender used deliberate, gratuitous, or repeated violence or other forms of degradation

●     The offender abused a position of power, trust, or authority

●     The offender committed the crime while subject to pre-trial or sentence conditions

 

What are examples of mitigating factors?

●     Lack of prior criminal record

●     Mental or physical illness

●     The victim’s culpability

●     The offender played a minor role in the crime

 

How can aggravating and mitigating factors affect a case?

After many years working as a defense lawyer, David Serna saw how aggravating and mitigating factors can mean much steeper or less harsh penalties. These details can mean the difference between jail time and probation. It can also mean the difference between a long prison sentence and a short jail term. So, it is essential to understand for the defendant to understand all the potential aggravating factors that can significantly impact their charges and penalties.

David Serna Shares What Immunity For Testimony Is

Many television shows and movies portray prosecutors sometimes bargaining with defendants whenever they believe that the suspect has valuable information about other more extensive criminal activities. David Serna thinks that more people should know about immunity deals with the prosecution, which they offer to defendants in exchange for their testimony. David Serna believes defendants should know that anyone with criminal charges has a Fifth Amendment privilege against self-incrimination. It means no one can force them to reveal any incriminating information about themselves. Besides directly incriminating responses, it also covers responses that could lead to the discovery of incriminating evidence.

 

David Serna believes it is a valuable tool for the prosecution to aid investigations and get relevant information that witnesses would not otherwise provide because of their fears. But, only a state or federal prosecutor can decide who receives immunity. They can grant immunity deals to defendants of various crimes, from something as minor as theft to more severe crimes like murder. Prosecutors usually offer immunity to defendants of minor crimes to help them convict someone involved in a significant crime. You can often see it occur in organized crimes when prosecutors provide immunity to a subordinate to testify against their leader.

 

Besides its definition, limits, and application, David Serna also believes defendants must be familiar with the types of immunity prosecutors may offer them. One type is transactional immunity, which protects them against any future charges based on any matter related to their testimony. Although it is the broadest type of immunity, known as total immunity, it does not save the defendant from prosecution for criminal activities unrelated to something discussed in the immunized testimony. Unlike transactional immunity, the use and derivative use immunity come with more restrictions. David Serna believes the prosecution offers this type of immunity more often because they can file charges similar to the crime against the witness. But, they can only charge their witness as long as the prosecutor base the charges entirely on independent evidence from a different source.

David Serna Shares Everything You Need to Know About Police Searches

 David Serna believes that being intimidated by law enforcers to give up their rights unconsciously is one of the most common things individuals are afraid of happening. Although police officers are responsible for protecting the public with confidence and strength, some civilians fear police officers may abuse their authority and power.

 

David Serna believes and advocates for the guarantees of individual freedom and liberty and a person’s constitutional rights, which he exhibits in his style of practice. Ever since he started in 1977, David Serna held distinguished positions, received many coveted honors, and earned the respect of his fellow defense lawyers, prosecutors, and judges. In 2007, aside from being a white-collar defense and DWI defense super lawyer, the Super Lawyers selected him as a criminal defense super lawyer.

 

After his experience with numerous legal cases, David Serna believes that many civilians experience anxiety and discomfort when facing police officers. Some are overly compliant because they respect the uniformed personnel and rightfully fear the potential consequences of disobeying commands. David Serna believes that being obedient and cooperative with the police is entirely right because it is the law. But, he also believes that being overly compliant with officers may cause the civilian to unconsciously give up his rights and constitutional protections against improper interfering of the State in their private matters.

 

Whatever circumstance with police officers a private individual is in, David Serna believes it is vital to know their constitutional rights and clearly say no to unreasonable and unlawful acts. Remember that saying no means you are rightfully asserting protections given by the Constitution. Officers should know that they cannot force private individuals to submit to a search without probable cause, warrant, or incident to an arrest. David Serna encourages individuals to immediately contact their lawyer if an officer insists that they comply. Stick to your no, so you can remain in control of your rights.

 

Note that you should contact a competent lawyer who can do their job well in defending you and your legal rights. If ever you need legal assistance, David Serna is available for consultations during COVID. Either by email, telephone, video conferencing, and in-person visits under strict disinfecting protocol and mask requirements.

 

David Serna Explains The Constitutional Right Against Double Jeopardy

David Serna believes that not many know about their constitutional right against double jeopardy, which is a must-know for every individual. This right means that the state cannot charge an acquitted person twice for the same offense. It is one of the fundamental protections provided by the Fifth Amendment to the U.S. Constitution for criminal defendants.

David Serna believes that it is essential for criminal defense lawyers to thoroughly explain every crucial aspect of their right against double jeopardy to their clients. One of the vital things they need to discuss is its obvious application when law enforcement finds new evidence of the defendant’s guilt after the jury acquitted them. The prosecution cannot charge the defendant again. Double jeopardy is also apparent when a judge tries to sentence a defendant for an offense they have already served their sentence.

But, David Serna believes that double jeopardy can be much more complex in certain circumstances. The court may order a new trial if there was a hung jury or there is new compelling evidence previously unavailable at the first trial. Additionally, the court may also order a new trial suppose the prosecution finds a tainted acquittal where there was intimidation of jury or witnesses, false evidence, or any form of corruption or bribery at the first trial. These two circumstances typically apply to the most serious offenses such as murder, manslaughter, or aggravated rape. It is why David Serna reminds his colleagues to do their best in their work without participating in any illegal acts, which can further damage the defendant’s case.

However, David Serna believes it is essential to remember that the protection against double jeopardy applies only to criminal cases. It means that other parties may sue an acquitted or convicted defendant in a civil lawsuit based on the same conduct. Additionally, double jeopardy does not apply until the court swears in the jury or until the first witness starts to testify in a trial before a judge. Therefore, filing charges does not trigger the rule.

If you need any legal assistance, David Serna is available for consultations during the COVID-19 pandemic. You can reach him via email, telephone, video conferencing, and in-person visits under strict disinfecting protocol and mask requirements.

David Serna Explains The Presumption of Innocence

 Are you familiar with the saying “innocent until proven guilty”? Did you know that it refers to a principle of criminal law known as the presumption of innocence? David Serna believes that it is essential for law enforcement officials and prosecutors always to keep this principle in mind. Doing so will help eliminate any prejudices or biases one may have against a suspect.

 

The presumption of innocence is a criminal law principle that presumes that a person is innocent until proven otherwise. David Serna believes that it is essential for lawyers to keep in their minds that even if there are charges against a person with the offense in question, it does not mean that they are guilty. It means that no one can punish them until the evidence shows they are guilty and a judge gives them a sentence.

 

David Serna also believes that trials should always occur without undue delay, given the impact of criminal proceedings on a defendant’s life. It is why before conviction, under the principle of the presumption of innocence, any restrictions on the accused individual’s fundamental rights should only be imposed where necessary.

 

The presumption of innocence is also a fundamental element of an individual’s right to a fair trial. David Serna reminds prosecutors and law enforcement officers that they cannot, in any way, compel the defendant to confess guilt or give evidence against self. The defendant does not have the burden of proving his innocence. Therefore, the state cannot use their silence as evidence of guilt.

 

In many countries, this principle is a legal right of the accused, which David Serna believes should be for every country. It is also an international human right under the United Nation’s Universal Declaration of Huma Rights, Article 11. If the prosecution wants a conviction, they need to prove that the accused is guilty beyond a reasonable doubt, backed by the legal burden of proof. If reasonable doubt remains, the state must give the defendant the benefit of the doubt and be acquitted because the state did not meet the burden of proof.

David Serna Talks About The Objectives of Criminal Law

Criminal law is the body of law related to crime and proscribes conduct perceived as threatening, harmful, or otherwise endangering to people’s welfare. David Serna believes that one of the most significant definitions of criminal law is its aim to identify, acknowledge, and punish and educate the greater community and potential offenders about their actions’ consequences.

 

People commit crimes every second worldwide, and many may wonder why people commit these offenses despite knowing that there are existing criminal laws that can provide punishment. Some people may even wonder what criminal law’s objective is if there is always someone violating others’ rights. Essentially, there are five criminal law objectives, and David Serna shares an overview of all of them in this post.

 

Retribution

Retribution refers to the judgment of sentencing of the court, delivering punishment for an offense. A trial determines the penalty, which usually takes away certain liberties and rights of the offender. David Serna believes that it is the most widely seen goal of criminal law. Criminals inflicted harm upon others, and consequently, the law will punish them and balance the scales once again.

 

Deterrence

Another primary objective of criminal law is deterrence. David Serna believes that the goal is to impose sufficient penalties to discourage offenders from criminal behavior and other society members from committing crimes. Serna trusts the authorities can only achieve deterrence when offenders have the chance to reflect on their actions’ consequences.

 

Incapacitation

Incapacitation or incarceration restricts an offender’s freedoms and rights as punishment for their crimes. It removes them from society and restrains them in a separate facility. David Serna believes that this objective helps prevent criminals from committing any further crimes and protect the general public from them.

 

Rehabilitation

David Serna believes that criminal law is not only about punishing offenders. It is also about transforming them into valuable society members, which is the goal of rehabilitation. It prevents further offense by identifying and addressing issues of the offender and redirect them for a positive outcome.

 

Restoration

Lastly, criminal law also aims to return the crime victim to their original position before the injury. It is a victim-based punishment, which seeks for criminals to accept accountability for their actions.

David Serna Explains the Pros and Cons of Pleading Guilty

 When criminal defense lawyers like David Serna makes the critical decision of whether to plead guilty or go to trial, they often have more factors to consider. They need to understand and explain carefully to their clients what trial rights they are giving up. In this post, David Serna will explain some of the pros and cons of pleading guilty.

 

Pros of pleading guilty:

Waiting for case trials can take up to a year or more. The defense attorneys, especially their clients, will have to wait anxiously, not knowing how the trial will favor them. But David Serna believes that when criminal defense lawyers plead guilty, they know that they will be confronting the case face-on. Meaning, they should resolve the case more quickly than if they waited for a criminal trial.

 

Besides the agonizing months of waiting for a trial, it can also cost a lot. The expense for defense lawyers is generally less when the defendant chooses to plead guilty instead of going to trial. David Serna believes that saving thousands of dollars should be one of the greatest consideration for someone who anticipates the jury to find them guilty.

 

David Serna believes that one of the best advantages of pleading guilty is avoiding a trial’s uncertainty. Juries are usually unpredictable, and prosecutors can always uncover additional evidence to convince the jury to convict the defendant. Since trials are public, pleading guilty will help the defendant avoid most media attention and unwanted attention.

 

Cons of pleading guilty:

Although there are excellent advantages in pleading guilty, David Serna believes that some risks are associated with it. The criminal record will follow the defendant for the rest of their life. Besides this consequence, the judge is still responsible for sentencing. They can generally impose a longer sentence compared to what the prosecutor suggests.

 

If you need any legal advice, you can reach lawyer David Serna, a nationally-recognized criminal defense lawyer, via email, telephone, video conferencing, or in-person visits under strict disinfecting protocol and mask requirements.