Kelly Moore: Criminal Defense Lawyer Midvale Utah

If you have been charged with a crime based on your action as a player during a sports event, contact an experienced Midvale Utah criminal defense lawyer.

In order to apply criminal law sanctions for undesirable conduct, the act that will incur penalties must first be defined — and in a way that insures predictability. This issue is especially difficult in the area of sports violence. Certain sports involve a great deal of physical contact and intimidation. Therefore, a certain amount of very physical but legal contact may be considered part of the game. The problem is in drawing a neat and predictable line as to when an act goes beyond the scope of the game and becomes criminal in nature.

The crime of battery is the offense that most often applies to sports violence. A battery can be defined as an unlawful application of force to the person of another resulting in bodily injury. The requirement that the battery be “unlawful” is the key to the exemption of sports-related batteries. Although the issue is often couched in such legal terms as consent or assumption of risk, the crux of the problem in distinguishing sports violence from criminal acts is unlawfulness. Society has seemingly exempted sports violence from the criminal law by treating it as lawful. The elements of a battery are (1) a “guilty” state of mind, (2) an act, (3) a physical touching or harming of a victim, and (4) causation — that is, the act must cause the touching or harm. The state of mind for a battery does not require actual intent. An extreme conscious disregard of known serious risks, called criminal negligence, will suffice. The Utah criminal statutes define some acts as aggravated battery and punish them as felonies. For example, the use of a deadly weapon or the causing of serious bodily injury are examples of an aggravated battery. Interestingly enough, ordinary objects can qualify as deadly objects if they are used in a way that can cause death. Hockey sticks, baseballs, and football helmets may qualify as deadly objects. Battery, of course, is not necessarily the only crime that might occur in the sports world.

Sports violence presents difficult issues in drawing the line between conduct that is accidental or within the rules of the game and conduct that is criminal. The problem is that certain sports are extremely physical, and violent physical contact is condoned under the rules. Thus, recalling the legal definition of a criminal battery as discussed previously, the act which is a crime on the streets becomes legal in the arena, and the illegality element of the definition of battery is negated. Only the most heinous acts that occur in contact sports such as football, hockey, and basketball fall beyond any possible justification under the scope of the game that legalizes violent contact.

Two major defenses are available to a defendant in a criminal prosecution involving sports violence: consent and self-defense. Consent is not normally a defense to a criminal act. The general rule is that one cannot consent to be the victim of a crime, and this rule is true except for certain specific exceptions; those exceptions are crimes in which a lack of consent forms one of the elements of the crime. For example, a successful prosecution for rape must include proof that there was a lack of consent on the part of the victim.

Sports violence, specifically the crime of battery, falls in a more difficult area to define compared with nonsports-related violence. Battery is not a crime that has lack of consent of the victim as an element, but, in certain battery cases, the unlawful-application-of-force element is not present because of consent.

The most difficult issue concerning the consent defense is drawing a line between reasonably foreseeable hazards that may be consented to and unreasonably foreseeable hazards that are not consented to. One of several different approaches on how to draw the line concerns looking at the normal violence associated with the sport. This means defining the scope of consented-to physical contact in a particular sport so that a participant in that sport would not be deemed to consent to acts that go beyond that scope.

The rules-of-the-game test is an alternative approach to the consent issue. A participant victim would not be deemed to have consented to acts that were illegal under the rules of the sport. This is a much weaker standard that would lessen the types of violence subject to a successful consent defense. On the other hand, the rules-of-the game approach is also an easier test to apply.
Some courts apply a test that looks toward the seriousness of the injury for a solution. This is a simplistic approach which reasons that the victim cannot be said to have consented to a grave injury. Another approach is “the reasonable foreseeability test,” which is commonly used in the area of torts. Under this test, a participant would only be held to have consented to those acts of violence that were considered a reasonably foreseeable part of the sport.

Finally, it should be noted that in addition to the above tests, the assumption-of-risk doctrine of tort law is often discussed in the area of consent to criminal acts (see Section 6.125[d]). Assumption of risk is very similar to the consent defense. A participant in a contact sport assumes the risk of violent contact and consents to the contact. But any injury that is serious enough to raise the specter of criminal prosecution should exceed the risk assumed by the participant. Therefore, the assumption of risk doctrine does not really add any useful analysis to the problem of the consent defense to battery.

The second major defense to a charge of battery is self-defense. The non-aggressor in a violent incident may use a reasonable amount of force against the aggressor when there is reason to believe that an immediate danger of harm is imminent and that the use of force is required to avoid this danger. In the area of sports violence, such a defense may not be available for a number of reasons.

A successful showing of self-defense must prove that the force used by the non-aggressor was no greater than that used against him. Usually, for example, a case will involve escalating violence, such as when a hockey player punches an opponent and the opponent strikes back with his stick. This may cause some difficulty in determining when “reasonable force” has been used. Another problem is the requirement that the defendant have the honest belief that danger of immediate, serious, bodily injury is imminent. In many cases, the possibility of an honest belief is discredited because often the defendant provoked the attack, and this negates a self-defense argument. Finally, some jurisdictions would further limit the defense to those cases in which the defendant had no reasonable means of retreat. Therefore, a player who could have avoided seriously injuring another by breaking off the confrontation would not be able to plead self-defense.
Other factors can relieve a defendant of responsibility for a crime, even though they are not true “defenses.” Thus, even though the prosecution proves each and every element of the crime charged, the defendant can escape punishment by showing that he acted in the heat of passion or was intoxicated. A person who acts as the result of an involuntary action may not have the mental element that is required under the definition of the crime. For example, murder that occurs under extenuating circumstances, such as discovering one’s spouse in bed with another, will be reduced to the lesser charge of voluntary manslaughter. Under certain circumstances, the heat of passion aroused in the defendant diminishes the responsibility for the criminal act.

The American devotion to the legality principle arises from rationales unrelated to, and often in conflict with, blameworthiness.

Procedural Fairness

Fairness requires that a person have at least an opportunity to find out what the criminal law commands. Actual notice is not required for liability; it is enough that the prohibition has been lawfully enacted. Similarly, a defendant’s actual knowledge that the conduct is prohibited and punished does not vitiate a legality-based defense. The concern of the legality principle is procedural fairness, not blamelessness.

Report and Investigation

The criminal justice process usually begins with a report of a crime by a citizen or a police officer. Typically an investigation follows to determine whether a crime has in fact been committed and, if so, by whom. Once a suspect has been identified, the investigation may continue in order to collect evidence for use in prosecution.

Arrest and Booking

When a police officer believes that there exists “probable cause” to think that a crime was committed and that a particular suspect committed it, the officer may arrest that suspect. Sometimes the evidence is presented to a magistrate beforehand and a judicial warrant to arrest is obtained, but most arrests are made without a warrant. An arrest is essentially a taking of physical control over the person and usually includes a search of the person for weapons, contraband, and evidence relating to the crime. The arrestee is then taken to the police station, where he or she is “booked.” This procedure consists of entering the arrestee’s name, the time, and the offense charged in a police log. The arrestee is photographed and fingerprinted, informed of the charge, and allowed to make a telephone call. Those charged with minor offenses are allowed to post cash security as “station-house bail,” which allows them to leave the police station with a promise to appear before a magistrate at a specified date. Persons who are arrested for more serious offenses or who are unable to post station-house bail are sent to a “lockup” after another more careful search, including an inventory of their personal possessions.

Precharge Screening

The first of many reviews of the charging decision is frequently made at this point. A higher ranking police officer may reduce or drop the charges for which a suspect was booked. This may occur either because the evidence is insufficient to proceed or because an informal disposition— perhaps including a lecture and warning— is more appropriate. Ten to 20 percent of all cases are dropped from the system at this point. A member of the prosecutor’s office also may screen the cases during this stage, although this frequently occurs only in felony cases.

Filing The Complaint

If it is determined that the prosecution will proceed, formal charges are filed with the court via a “complaint.” This document briefly describes the facts of the case and is sworn to by the complainant, likely to be either the victim or the investigating officer. The affiant (or person giving the affidavit) can swear only to the facts known to him or her, of course, so a complaint by the investigating officer is likely to contain only claims about what the officer believes or what others reported. A magistrate will review the complaint ex parte (without the presence or participation of the parties) to determine whether probable cause exists to believe that the “defendant,” as he or she is now called, committed the offense charged. If the magistrate is not satisfied that there is probable cause, he or she will dismiss the complaint, but without prejudice— that is, the prosecutor may amend and refile the complaint in the future. Where an arrest warrant was previously obtained on the basis of a complaint, this step will, of course, already be complete; the defendant will be taken directly from booking to the initial appearance.

Initial Appearance In Court

Soon after a person is arrested and booked, unless released on station-house bail, he or she is brought before a magistrate. The magistrate confirms that the arrestee is the person named in the complaint and informs the arrestee of his or her constitutional rights, including the right to remain silent, the right to have counsel, and the right to have counsel appointed if he or she cannot afford one. Frequently, counsel is appointed at this stage.

Bail Out Of Jail

The magistrate at the initial appearance also reviews any bail conditions previously set at the station house and sets bail for those arrestees who did not previously have it set. High bail amounts typically require the services of a professional bondsman to ensure the defendant’s appearance, to whom the defendant must pay a non-refundable or only partially refundable fee. Increasingly, defendants have been allowed to pay, in cash, an amount equal to 10 percent of the total bail amount, which is then refundable if the defendant appears as directed.

Utah criminal law is complex. If you have been charged with a crime, contact an experienced Midvale Utah criminal defense lawyer.

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