Can fighting the legality of the law itself be a good criminal defense? 37 Answers as of November 29, 2011

What do you mean by "bad?" I think there are several "bad" laws, but that doesn't matter. You can write your political representatives to change them. They make the laws. Now, if the law you're talking about is "bad' because it's unconstitutional, that is a different story. If it violates the Constitutions of either New York State or the United States, it can be challenged on those grounds. If found to be unconstitutional, the law will be stricken.

Yes, it would be a great defense.

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.

Yes. Challenging the constitutionality of an existing law can be an effective challenge to a criminal offense. Such effective challenges are rare, however, and would require experienced legal counsel.

It can work but it is usually a long shot. It may well be that the facts of your case are such that either a long shot or a guilty plea or your only two options. If you are not inclined to accept whatever plea offer has been made, your lawyer may only be left with the long shot.

If the law is unconstitutional, yes.

It can and has in the past. The degree of success would depend on what is being alleged to be wrong with the law.

Sometimes that is a great defense. In example, a few years ago a defense attorney friend of mine challenged the law that said you are DUI if a test detects THC in your blood or urine regardless of whether you were impaired. It was complicated, but basically he argued that the law was a violation of the equal protection clause of the Constitution. The Georgia Supreme Court ruled in his favor and he won. So, that can be a great defense in some cases.

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.

Yes it can. It's a difficult task, but the law is written by people like you and me. Sometimes we have personal biases, or feel so strongly about an issue we are blinded to things we might otherwise see. this might lead to writing a law that infringes on society's or individuals rights too severely... In legal-ese, a law, can be "overbroad," in that it restricts more conduct or activity than is necessary to achieve the law's goals; a la can be too general or confusing, meaning it doesn't give a person of reasonable intelligence an opportunitty to comply with it because after reading the law a person still doesn't know what he or she can or cannot do - the law is deemed "vague" and therefore unconstitutional. Vagueess and overbreadth are the two main ways of attacking a statute.

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.

Maybe, maybe not. Without knowing the specific law in question and how it relates to the relevant facts in your case, it would be difficult to say with any certainty.

It depends. Trust your lawyer to help you. A qualified lawyer, who has experience representing criminal defendants will use the best available defenses to help you.

Yes, sometimes but in rare cases. Talk to your attorney if you have doubts about your representation.

It could, but most laws have either been challenged and upheld, or else are only found unconstitutional in very rare situations. If there are no other viable defenses, and you will not face more severe consequences by challenging it, you have nothing to lose.

Anything is possible. Many cases have been won on appeal because of issues related to the legality of certain laws that have been passed. I will defer to the high capabilities of your fine defense counsel to make that determination.

It could possibly work but usually laws have to be changed by the legislature.

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.

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.

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.

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).

You have not given me enough information to advise you. Most challenges to existing laws are unsuccessful. I doubt that the courts will rule that the penal law you are accused of will be declared unconstitutional. It appears that your lawyer is grabbing at straws.

Maybe. It depends on how he attacks the law. This must be a constitutional issue.

Yes, if the statute is unconstitutional, or improperly drafted that can be a defense.

Yes, it is a difficult way to win, but it is definitely possible!

Theoretically, it could work. Realistically? It's pretty unlikely, statistically, unless maybe it happens to be a new law that hasn't really been "tested out" yet and was badly written (usually in such a way that it's not really clear if a certain behavior is illegal or not). So, anything's possible, but if you've got any kind of backup defense in mind, I'd sure discuss that with your attorney now.