Criminal Defenses

The possibility of being charged with a crime is a serious and scary situation for anyone that finds themselves the subject of a police investigation. The reality is that every person, every allegation and every case is different and unique. The best defense in your case will depend on the unique facts in your unique situation. Take comfort however, because a knowledgeable and experienced criminal defense attorney will bring to the table many different legal defenses depending on your individualized facts.

The following is a list of common potential defenses that may be applicable to your case. While not an exhaustive list, each of these defenses have been used by Board Certified criminal defense attorney Josh Tomsheck in the representation of his clients, both before and after charges are filed.

False Accusations

Despite what many people may believe, it is actually very common that a person can be charged with a crime that they did not commit, because of the false accusation of another person. This scenario happens often in Domestic Violence charges, especially when a divorce or child custody case may also be at stake. False accusations can commonly occur in allegations of a disgruntled former spouse, employee or employer, a rift between friends or even in the most serious of allegations, such as sexual assault. For obvious reasons, the law is set up to assist a victim of crime when they report a wrongdoing of someone else. However, when the accusation is a false one there can be dire consequences when not defended properly. In domestic violence cases, for example, the word of the accuser is taken very seriously, even if there are no physical injuries to corroborate the statement. Nevada also mandates that somebody is arrested when police officers are called out to investigate a case of domestic violence. The law in Nevada is that the word of an accuser of a sexual crime is, if believed beyond a reasonable doubt, in and of itself sufficient to sustain a conviction for a crime of sexual assault – – even if there is no corroborating evidence.

When someone is falsely accused of a crime, an experienced criminal defense attorney can often work to show errors, inaccuracies or inconsistencies in an alleged victim’s story to law enforcement. This can lead to the case being reduced or dismissed or an acquittal at trial. If you or someone you care about has been falsely accused of a Crime, don’t chance it just because you think the allegation isn’t a legitimate one. Seek the advice of an experienced Las Vegas Criminal Defense Attorney right away.

Insanity

While not as easy to establish as you may think from seeing television, Insanity can be raised as a defense in certain distinctive situations. To qualify as being legally insane under Nevada law, a person charged with a crime must be shown to have acted in a delusional state such that he or she does not know or understand the nature and capacity of his or her act, or his or her delusion must be such that he or she cannot appreciate the wrongfulness of his or her act, i.e., that the act is not authorized by law.   If a jury hearing evidence in a case believes a person was suffering from such a delusional point of view and believe the person was acting subject to their delusion, that person is legally “insane” and is entitled to verdict of NOT guilty. It is important to note that the person has to be acting only under the influence of the delusion and not some other motivation. For instance, if a person suffering from a delusion believes that someone is shooting at them and they shoot back believing they are acting in self- defense because of such a delusion, they are legally “insane” under the law. However, if someone believes under the influence of a delusion that a person is going to hurt them sometime in the future and they therefore chase the person down and kill them, they are not under the influence of the delusion alone and are not legally “insane.” If you believe you or your loved one has mental health issues and that led to their being accused of a criminal offense, contact attorney Josh Tomsheck to discuss your matter right away.

False / Coerced Confessions

As happens more than many people realize, police have often compelled false confessions from innocent people by using psychological techniques, tactics and training to produce the confessions they want to close their cases. Good law enforcement officers are trained to keep suspects talking. These techniques are, in fact, legal and commonly used in the interrogation of suspected criminals. Suspects sometimes believe that if they say the right thing, or something that the police want to hear, they will be allowed to leave. This can lead to a suspect saying something that isn’t true in an attempt to leave or to stop the questioning. Although not legal, in extreme cases, law enforcement has resorted to threats or violence to keep an accused person talking.

Other tactics that police will use in interrogation, while trying to get their desired result, would be persistent questioning, sleep deprivation, food deprivation, water deprivation, not allowing bathroom breaks, harming, threatening harm or making certain promises so that the suspect will confess. If the defendant can show that the confession was a result of the police officer’s questioning techniques, it may be possible to have the confession suppressed, or “thrown out” in its entirety. In cases of false confession, prosecutors often cannot proceed without a Defendant’s admission.

If you have questions about the manner in which a purported confession was obtained, contact Las Vegas criminal defense attorney Josh Tomsheck right away and let him get to work on defending your case.

Not At the Scene / Alibi

It is widely known that if a defendant was not at the scene of a criminal incident, and the prosecutor’s theory is that he or she was present, they cannot be guilty of the alleged charge. This is commonly referred to as an alibi defense.

In some cases, such as a conspiracy allegation, not being present at the scene is not necessarily a defense to the crime. However, when the state’s theory is that a person is present and/or they actually committed the crime, and proof exists they were not in fact there, this is a very effective defense.

Many individuals do not know that in order to assert the legal defense of alibi, there are certain criteria which must be met. A Defendant must place the State on notice by filing a Notice of Alibi witnesses and providing the names and contact information of the people the Defendant intends to call at Trial. If the rules adhering to Alibi witnesses are not followed it potentially could result in the defense not being allowed to be asserted at Trial. It is important to know the procedural rules to allow for a proper alibi defense to be asserted

In order for your alibi to hold up in court, there often must be corroboration. Corroboration means that there is other evidence that confirms the person wasn’t present, such as a witness or documentary evidence of the accused being in a different place at the time of a crime. Examples include other people seeing you in a different location, or a receipt proving that you were elsewhere at the place and time of the crime.

If you have questions about an alibi defense or think you are being accused of a crime you didn’t commit, a free consultation with veteran Las Vegas criminal defense attorney Josh Tomsheck is usually in your best interest. Contact us right away to discuss your unique case.

No Intent / Accident / Mistake

In Nevada, most charges must allege an intent element in a criminal charge, in other words that the accused intended to commit the crime, that the crime was willful, or that the accused knowingly committed the crime.

In such cases, where there in an intent element, the State will have to prove that the Defendant did actually intend to commit the crime and must so prove beyond a reasonable doubt. However, in some cases, it is a defense to the charge that the Defendant did not intend to commit the act or that the act was committed with no criminal intent. In such cases, this defense can lead to the dismissal of charges and/or an acquittal.

A common example of this would be a petit larceny (NRS 205.240), better known as “shoplifting” charge. Assume a person is shopping and intends to purchase the items in his or her shopping cart. However, the person walks out of the store without realizing they are still holding an item or inadvertently placed the item in a bag they were carrying and forgot to pay for it. In this case, an accidental taking is a valid defense as they did not intentionally remove the item from the store and permanently deprive the store owner of their property without paying for it.

If you believe you may have a defense related to the absence of criminal intent, or have questions about legal defenses in general, contact Board Certified Criminal Trial attorney Josh Tomsheck today to schedule a time to discuss your case at no charge.

Duress

Actions may be legally excusable if the person committed a crime because they felt that they were in immediate danger. This is called duress.

Duress is available as a defense in most cases, excluding homicide allegations. For instance, duress can be asserted as an affirmative defense in allegations of battery. According to NRS 200.481, battery means that the defendant used willful and unlawful force on the body of another. It may be possible that the accused only hit another person because they felt they, or someone else would be harmed if they did not react in such a way. Typically, duress is available as a defense where someone is in an immediate risk of danger, there is a well-grounded fear that the dangerous risk will be carried out and there is no reasonable means to escape other than committing the otherwise unlawful act.

Self Defense

Nevada law allows people to use reasonable force to defend themselves, or others around them, when they feel that they are in immediate danger. The force must be deemed to be appropriate, and equivalent to what a reasonable person would do. Under Nevada law, the use of force may be reasonable and even justified when it is used in the defense of oneself or others. NRS 200.120 outlines that the killing of a human being can be justified, and not criminal, if it is don’t in necessary self-defense. In many homicide or murder cases, self-defense is a viable claim to refute the charges.

Veteran Las Vegas criminal defense attorney Josh Tomsheck has raised self-defense in a number of different violent crime allegations and has obtained several not guilty verdicts at trial arguing self-defense on behalf of his clients. If you believe your actions were justifiable self-defense and you are being accused in a criminal case, contact us today to discuss.

Unconscious or Involuntary Intoxication

In certain circumstances involuntary intoxication can be a defense to a criminal allegation. There are many documented cases in Las Vegas where a person has been drugged without their consent. In such an instance, a person may be rendered in such a condition where they are not conscious of their actions. This can include incidents where a person has committed a criminal offense without intending to do so and without the knowledge it is occurring. If a person was not conscious of their behavior, and did not have the intent to commit a crime, it is possible that they won’t be held criminally responsible. Contact Las Vegas criminal defense lawyer Josh Tomsheck today to discuss this potential defense and your options in fighting your case.

Entrapment

Entrapment means that a crime is committed only when a person was harassed, coerced or overbearing tactics are utilized to compel a person to commit a criminal act they otherwise wouldn’t be predisposed to commit. This can be a case where someone is enticed, threats are made against them or they are compelled through dishonesty to commit an act not normally in their character or pattern of behavior.

Entrapment is usually brought in cases where there are undercover or “sting” operations wherein law enforcement may act as if they are engaged in criminal actions and attempt to encourage citizens to do the same. This can be an undercover detective acting like a prostitute, a detective pretending like they are passed out on the street with money hanging out of their pocket or law enforcement pretending they are selling stolen items. In order for the entrapment defense to be effective, it must prove that the police were acting too aggressively in getting people who otherwise are not criminals to violate the law.

If you think you, or someone you care about, has been entrapped into a situation where they now face criminal charges, contact attorney Josh Tomsheck today to discuss your case.

Necessity

Necessity is a defense that is raised when a person had to commit the alleged crime in order to avoid harm or danger, as there was no other option available except for the criminal offense.

One such example is where two individuals, one intoxicated and one sober, are riding in a car together with the sober individual driving. Suddenly, the sober driver has a life threatening medical episode. The intoxicated driver then drives the pair to a location to get help. Technically, this intoxicated person is driving under the influence as prohibited by NRS 484C.110, however, there is a viable and legally recognized argument that the driving was a necessity in an attempt to save the life of their friend.

Lack of Probable Cause

Law enforcement agents must have probable cause that an individual committed a crime before any arrest and prosecution can be justified. This is a well-established principle in law pursuant to the United States Constitution and the Nevada Constitution.

If police officers do not have probable cause, the defendant can challenge such items as a stop, search and arrest for lack of probable cause. This can lead to the suppression of important evidence and the potential that a whole case can be dismissed. Fighting issues related to probable cause remains one of the most effective, and most overlooked, defenses to criminal charges.

Mistake of Fact

In cases where mistaken identity, or mistake of fact, is reasonable, then this defense can be effective. This means that the defendant’s action was an honest mistake, and did not have any malicious intent, they are not guilty of a criminal offense. For example, let’s say there are 2 different cellular telephones left in a public bathroom. They are the same shape, same size and same color. If one person picks up the cellular phone that doesn’t belong to them, mistakenly thinking it is the one rightfully belonging to them, they may technically be committing a theft offense but without the requisite intent. This mistake of fact may be a viable defense in such a circumstance or in a similar case with different facts.

Statute of Limitations

In Nevada, a statute of limitations is the “time cap” on when a charge can be filed against a person. For a misdemeanor offense, the prosecution can file a criminal complaint one (1) calendar year after the crime is alleged to have occurred. A criminal complaint can NOT be filed after one year has passed. Prosecutors have two years, from the date of the alleged crime, to file a complaint for a gross misdemeanor charge. Most felony offenses have a statute of limitation of three years. However, the felony charges of robbery, theft, arson, burglary, forgery and sexual assault have a four year period for the prosecution to build a case, gather evidence and charge an individual. For the crime of sexual abuse against a child, the statute of limitation finishes when the victim reaches 21 years old, or 28 years old, depending on the circumstance. If the alleged victim of sexual abuse as a child does not discovery, or reasonably should not have discovered, that they were a victim then the statute of limitation goes to age 28. The only crime in Nevada that does NOT have a statute of limitations is murder.

It is not uncommon for prosecutors to fail to file a charge by the statute of limitations or to incorrectly identify a statute of limitations for the alleged offense. This is an issue which can easily be overlooked but which is dispositive of the case in the favor of the person accused.

Las Vegas Criminal Defense Attorney Josh Tomsheck is a former Chief Deputy District Attorney with who is highly skilled at mounting successful defenses to criminal charges. Mr. Tomsheck worked in the Major Violators Unit of the Clark County District Attorney’s Office and has handled virtually every type of criminal allegation in Nevada, from simple misdemeanors to Capital Murder. Since forming the practice of Hofland & Tomsheck in 2011, Mr. Tomsheck has mounted successful defenses to virtually every type of charge in Nevada Courts, State and Federal.

Mr. Tomsheck is highly respected in the legal and law enforcement communities as a fierce defender of his clients’ rights who can mount the best defense possible. Mr. Tomsheck is highly regarded for his legal knowledge and presence in the courtroom and is Nationally Board Certified in Criminal Trial law. If you or a loved one have been charged with a criminal offense in the Las Vegas area, it is extremely important that you contact Mr. Tomsheck immediately to begin working on your case as quickly as possible.

For more information about Legal Defenses, and to schedule your free consultation, contact experienced Las Vegas Defense Attorney Josh Tomsheck at Hofland & Tomsheck. Mr. Tomsheck can be reached 24/7 at (702) 895-6760.