9.4 Defenses, Sentencing & the Paralegal Role

The last piece of the Criminal Law picture on the NALA CP Knowledge Exam ties together what defendants can argue, what happens after conviction, and where paralegals fit in a criminal practice. Keep the big three categories of defenses straight: failure of proof (the prosecution cannot prove an element), justification/excuse (affirmative defenses), and procedural defenses.

Justification Defenses

A justification defense says: I did it, and it was the right thing to do under the circumstances.

• Self-defense: a person may use reasonable force against an imminent threat of unlawful harm. Deadly force is justified only against a reasonable threat of death or serious bodily injury. Traditional doctrine required the initial aggressor to lose the right of self-defense unless he withdrew and communicated the withdrawal. Many states impose a duty to retreat before deadly force when safe retreat is possible, but the castle doctrine removes that duty in one's own home, and "stand your ground" statutes remove it in public as well.
• Defense of others: permits the same force the person defended could lawfully have used; the modern (majority) rule asks only whether the defender reasonably believed intervention was necessary.
• Defense of property: reasonable non-deadly force only — never deadly force — to protect property.
• Necessity (choice of evils): committing a lesser crime to avoid a greater, imminent harm from natural forces — the harm avoided must clearly outweigh the harm caused, and the defense fails if the defendant caused the emergency.

Excuse Defenses

An excuse says: the act was wrong, but I should not be blamed.

Insanity

The tests differ, and exam questions exploit the differences:

After the Hinckley verdict, Congress passed the Insanity Defense Reform Act of 1984: in federal court the defense is limited to inability to appreciate the nature/quality or wrongfulness of the acts, and the defendant bears the burden of proving insanity by clear and convincing evidence. Distinguish insanity from competency to stand trial, which asks whether the defendant can understand the proceedings and assist counsel — evaluated at the time of trial, not the time of the crime.

Other Excuses

• Duress: a reasonable fear of imminent death or serious bodily harm from a third party's threats coerced the crime; traditionally not a defense to intentional homicide.
• Entrapment: the government induced the crime and the defendant was not predisposed to commit it (majority/subjective test). Merely providing an opportunity is not entrapment — a frequent trap.
• Intoxication: voluntary intoxication may negate specific intent but never general intent; involuntary intoxication (coerced, prescribed, unforeseeable reaction) can be a complete defense.
• Infancy, unconsciousness (automatism), and mistake of fact (negates mens rea; for general intent the mistake must be reasonable) round out the list.

Procedural Defenses

• Statute of limitations: the deadline for filing charges. The general federal limitations period for non-capital felonies is five years (18 U.S.C. § 3282); many serious crimes have longer periods, and murder has no statute of limitations.
• Double jeopardy, speedy trial violations, prosecutorial misconduct, selective or vindictive prosecution, and immunity (use and derivative use immunity vs. transactional immunity) also terminate prosecutions.

Sentencing Basics

After conviction (by plea or verdict), the court imposes sentence. Key concepts:

• Indeterminate sentencing (e.g., 5-to-15 years) leaves release to a parole board; determinate sentencing fixes the term.
• The United States Sentencing Guidelines assign offense levels and criminal-history categories to produce an advisory range; since United States v. Booker (2005), the federal guidelines are advisory, not mandatory, and judges must consider them but may vary.
• A presentence investigation report (PSR) — usually prepared by a probation officer — drives the sentencing hearing; mitigating factors (no record, remorse, cooperation) argue for leniency while aggravating factors (vulnerability of victim, leadership role) argue the opposite.
• Sentence types: incarceration, fines, restitution to victims, probation, and concurrent vs. consecutive terms for multiple counts.

Probation vs. Parole

Do not conflate them — a reliable exam distinction:

Both involve supervised release subject to conditions (employment, drug testing, travel limits); violations can result in revocation and imprisonment. The federal system abolished parole for offenses after November 1, 1987, substituting supervised release.

Appeal and Habeas Corpus

A convicted defendant may pursue a direct appeal alleging errors of law (improper admission of evidence, bad jury instructions, insufficient evidence). Appellate courts review for legal error, not to reweigh facts; harmless errors do not require reversal. The prosecution generally cannot appeal an acquittal (double jeopardy).

Habeas corpus — the "Great Writ" — is a collateral attack: a civil petition claiming the prisoner is held in violation of the Constitution or federal law, raising issues outside the trial record such as ineffective assistance of counsel. Federal review of state convictions runs through 28 U.S.C. § 2254; federal prisoners move under 28 U.S.C. § 2255. Strict deadlines apply under the Antiterrorism and Effective Death Penalty Act (generally one year).

The Paralegal Role in Criminal Practice

Paralegals in prosecutor's offices, public defender offices, and private defense firms perform supervised, substantive work:

• Intake and chronology: interview support, building timelines from police reports, and organizing body-camera and surveillance footage
• Discovery management: drafting Rule 16 and Brady requests, indexing disclosures, and flagging missing materials
• Motion support: cite-checking suppression and bail motions, assembling exhibits
• Trial preparation: witness lists, subpoenas, exhibit notebooks, and trial calendars tracking Speedy Trial Act clocks
• Sentencing: gathering mitigation (employment, treatment, family, community letters) for sentencing memoranda and reviewing PSR drafts for factual errors
• Post-conviction: tracking appeal and habeas deadlines and organizing the record on appeal

Everything is performed under attorney supervision, and the confidentiality rules of the attorney-client relationship extend to the paralegal's work product.

Paralegal scenario: A client pleads guilty to a federal wire fraud count. You compile his work history, therapy records, and fourteen character letters into a mitigation binder, verify the PSR's loss-amount calculation line by line, and confirm the supervised-release conditions match the plea agreement — work that directly shapes the sentence the judge imposes.