Chicago criminal defense attorney

January 20, 2015

Illinois Governor Signs “Revenge Porn” Law

by Law Offices of David L. Freidberg, P.C.

If you’re on the internet at all these days, you’ve no doubt heard of “revenge porn”. An ex-romantic partner, whether in a fit of jealousy or just a pure desire to get back at you for dumping him, posts private, nude images you had sent him online for all the world to see. Or maybe a current girlfriend, angered that she caught you flirting with another girl, posts naked pictures to her social media account without your consent, in an attempt to ridicule you. Regardless of the motivation behind it, as of January 1, posting such pictures without your partner’s consent is a class 4 felony that could land you in prison.

Illinois Revenge Porn Law

The law, which was proposed by Sen. Michael Hastings of Tinley Park in 2014, prohibits the “non-consensual dissemination of private sexual images”. It is seen by proponents as closing a loophole in the pornography laws, which make it a crime to post nude images on pornographic sites without the subject’s consent. But the law did not criminalize disseminating nude pictures, which were shared privately between two consenting adults, on social media.

Under the law, an individual is prohibited from intentionally sharing an image of a person over the age of 18 if the person is:

Identifiable from the either the image or information displayed in connection with the image, and
Engaged in a sexual act, or whose intimate parts are exposed.

In addition, a reasonable person must have understood that the images were to remain private, and the person sharing the image must have known, or should have known, that the person in the photo did not consent to its being shared.

For purposes of the law, “image” includes any photograph, film, videotape, digital recording or other depiction or portrayal. Although the law was drafted with the idea of the image being shared on social media, posting the photo in public places would constitute a violation of the law. A conviction under the law is a class 4 felony, which carries the possibility of 1 – 3 years in prison.

Defense against Illinois Revenge Porn

Although many consider revenge porn something to laugh at and not that serious – after all, the person voluntarily shared nude photos of herself – conviction under the law is serious. Defending against a charge of revenge porn requires a careful examination of all the evidence, including having a forensic expert examine the all data related to the dissemination of the image, to find the flaws in the prosecution’s case. Evidence that would go against a conviction include:

Unintentional dissemination of the image, for example if a virus caused your phone or computer to share the image via a text or e-mail;
If the phone was in somebody else’s possession when the image was sent;
Whether somebody had hacked in to your phone or computer and sent the image;
If a reasonable person would have believed sharing the images was acceptable, for example if the woman in the picture had those same images on public display in her home, or;
Nobody would have been able to identify the person in the image – for example, his face was blurred or cropped out – but for the fact that he told everybody it was him.

January 14, 2015

Chicago Store Clerks Defend Against Alleged Armed Robbers

by Law Offices of David L. Freidberg, P.C.

Two Chicago store clerks who were the victims of an armed robbery opened fire on the alleged assailants recently. Following the robbery, the manager of the 7-11 saw a vehicle parked in the alley; when he and the employee approached with guns, the alleged assailants opened fire. The clerks fired off eight shots before the alleged assailants fled.

Self-Defense: By the Victims or the Armed Robbers?

This case raises an interesting question of whether the victims were justified in their use of force against the armed robbers, and whether they could face potential charges of aggravated battery or aggravated assault for firing upon the alleged assailants.

Illinois law allows an individual who used force against another to claim self-defense if “he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.” The law further states that a person can only use force intended to, or likely to cause, death or great bodily harm – such as firing a gun – “only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Illinois law does not allow a person to claim self-defense if force was used during an escape from commission of a forcible felony, or initially provided the use of force himself. It also cannot be claimed if the person asserting the defense initiated the contact, unless he indicates his desire to withdraw from his initial use of force.

So in a typical convenience store robbery, the alleged victims would have been justified in pulling their weapons and firing if they had done so during the commission of the crime. One assailant allegedly held a gun to the clerks’ head and threatened to blow his head off if he didn’t hand over the money. Under the self-defense law, the clerk and his boss would have been justified in pulling their weapons and firing because there was a reasonable belief that their lives were in imminent danger. They also would have been justified in using force, even if the assailant hadn’t made the threat, because armed robbery is a forcible felony.

But the circumstances surrounding this case are not so straightforward. The clerks pulled their guns after the armed robbery had been committed and the assailants fled the store. So there is a question of whether the clerks’ use of force was justified, or whether the assailants themselves could claim self-defense.

At the point where the clerks approached the assailants with their weapons, there was no longer a need to defend against another’s use of imminent force, there was no fear that either of them were in danger of suffering great bodily harm, and the forcible felony had been completed. This doesn’t appear like the typical “escape” scenario, because the clerks did not chase the assailants out, guns drawn. Instead, the assailants left with the money, and the clerks then saw a car in the alley on their security cameras. They then chose walk out and confront the assailants, not even sure if the people in the car were the assailants. Their actions could be considered retaliation or vigilante justice rather than self-defense.

You may be thinking, “But when the clerks approached, the assailants drew their weapons and opened fire, so the clerks were justified.” That may be true. It may also be true that the assailants (assuming they even were the assailants) were now in fear for their lives and opened fire to protect themselves from imminent bodily harm. Yes, the law says that a person who initiated force cannot then claim self-defense if force is used against them. However, the initial aggressor can claim self-defense if he indicated a desire to disengage. Here, the fact that the assailants fled the scene could show an indication on their part to disengage from their initial threat of force, so that the clerks’ approach with guns drawn was now an improper use of force.

December 24, 2014

Conviction of Illinois Hate Crime Carries Additional Penalties

by Law Offices of David L. Freidberg, P.C.

A Cook County man was arrested this past October and charged with attempted first-degree murder and hate crimes for allegedly stabbing a 79-year-old African-American woman.

Illinois Hate Crimes

When most people think of a hate crime, they think of an assault upon an African-American, maybe even a lesbian, gay or transgendered individual. But hate crimes under Illinois law may be committed against an individual due to his:

Race;
Color;
Creed;
Religion;
Ancestry;
Gender;
Sexual Orientation;
Physical or mental disability, or;
National origin.

Hate crimes include not only assault and battery, but also:

Theft;
Trespass to residence, vehicle or real property;
Damage to property;
Mob action;
Disorderly conduct, or;
Harassment by telephone or electronic communications.

Hate crimes are a class 4 felony – class 2 if it’s a second offense – and carry with it a minimum of one year in prison. Hate crimes are a class 3 felony if committed in certain locations, such as a school or church. The penalties imposed for conviction of a hate crime are in addition to those imposed for conviction of the underlying offense. The defendant in a hate crime case is charged then not only with the hate crime, but with the assault, battery, or whatever other crime committed against the victim as well.

Defenses Against Hate Crimes

There are two portions of a hate crime defense – defending against the underlying crime, and defending against the hate crime charge. When defending against a hate crime, it is actually not a defense that the victim was not a member of a protected class. For example, if the defendant attacked a man because he thought he was Muslim, but it turned out he was Indian, the mistake as to the victim’s actual ethnicity is not a defense to the charge. It is enough that the defendant thought he was attacking a Muslim.

In order to successfully defend against a hate crime, the defense attorney must prove that the crime was not racially motivated (assuming that he cannot disprove commission of the underlying crime). Just because a crime victim falls into the protected class of victims does not automatically mean it is a hate crime, although the prosecution may attempt to argue otherwise. Proving the crime was not motivated by hatred toward the victim’s race, sexual orientation, religion, or other protected class may include:

Showing a lack of history of any type of racial crime;
Showing that the crime was one of opportunity; for example, you robbed the woman on the street corner because she was there and you needed money, not because she was a woman;
Lack of use of racial, sexual or other slurs against the victim during the commission of the crime, or;
You have a prior history of committing the same offense, and there is no pattern of it being against members of the protected class.

Disproving that the crime was motivated by reasons unrelated to race, religion, gender, or any of the other protected classes will result in the jury being forced to acquit on the hate crime charge.

November 7, 2014

Chicago Man Charged with Murder While Out on Bond for Sexual Assault

by Law Offices of David L. Freidberg, P.C.

A Chicago man out on bond for a sexual assault charge was arrested recently for an unrelated murder. The defendant, who is accused of raping three girls last year along with eight other men, allegedly shot two men on Chicago’s west side; one of the men died at the scene, while the other suffered a gunshot wound to the arm.

Chicago Defense of Unrelated Crimes

This case is a criminal defense attorney’s nightmare – a client, out on bond, gets arrested for committing a second crime. And in this case, the second charge is worse than the first. But it does raise a variety of possible defense tactics, whether it is the same attorney representing the defendant on both charges, or if the defendant has one attorney for the sexual assault charge and one for the murder charge.

Of course, the typical defense against both crimes would be present here. Defense against the sexual assault charge would include:

Mistaken identity;
Lack of DNA evidence tying the defendant to the sexual assault;
Consensual sex, if DNA evidence is present;
The defendant was forced to participate in the sexual assault by the other participants, under threat of great bodily harm (committing a crime to prevent injury is not a true defense, but may result in a lesser sentence due to mitigating circumstances), or;
The victims fabricated the story in retaliation for some unknown slight, or because they were later embarrassed to have consented to sex group sex.

Defense against the murder charge would include:

Mistaken identity;
The defendant was not the one who fired the gun (this would require ballistics analysis by a team of forensic experts); or
The defendant fired in self-defense (if it can be proven he was the one who fired the gun).

But, assuming the prosecution has enough evidence to take both cases to trial, the two pending cases give the criminal defense attorney leverage in negotiations to enter into a plea agreement or to have the charges reduced.

The defendant is one of nine men allegedly involved in the 2013 rape of three women. In a gang rape, it is likely that one of the men was the ring leader; there may be one or more men who have committed prior sexual assaults that the police have not linked them too. If the defendant can help the prosecution bolster its case against other men involved in the rape, or if he has knowledge of any unsolved sexual assaults any of the defendants may have been involved in, the defense attorney may be able to strike a deal with the prosecution for a reduced sentence or a reduction in charges in either the murder case, sexual assault case, or both.

Likewise, the criminal defense attorney can leverage the defendant’s testimony in the murder case to seek a reduced sentence in either the sexual assault case, the murder case, or both. If the co-defendant in the murder case was actually the one who pulled the trigger, and the defendant is willing to testify to that, thus allowing the prosecution to gain a conviction on heightened charges, the prosecution may be willing to strike a deal.

It is always the goal of any criminal defense attorney to achieve an outright dismissal of charges, or to obtain an acquittal in court, for his client. But when the evidence shows that the defendant is likely to be convicted, an experienced criminal defense attorney knows when to use any leverage available to help his client win a reduction in charges or a reduced sentence.

October 17, 2014

Chicago to Allow Post-Conviction DNA Testing

by Law Offices of David L. Freidberg, P.C.

A law signed by Illinois Governor Pat Quinn in August allows Illinois prison inmates who pled guilty to murder, rape or any other crime where DNA evidence is present, to petition the court to have that evidence tested in an attempt to have their conviction overturned.

Illinois Post-Conviction DNA Testing Law

Prior to enactment of the amendment, Illinois inmates were only allowed to petition the court for post-conviction DNA or other forensic testing if they were found guilty at trial. Entering a guilty plea prior to a verdict being handed down made inmates ineligible for post-conviction DNA testing.

The amended law changes that. Under the law as amended, inmates who pled guilty prior to trial may petition the court if they can prove that:

Identity was the issue that led to their guilty plea; and
The evidence to be tested has remained in the chain of custody sufficient to establish that it has not been altered in anyway.

In order to file the petition, the DNA evidence must not have been available when the defendant entered his guilty plea, or new testing techniques must have been developed. In addition, the defendant must prove that the evidence

raise(s) a reasonable probability that the defendant would have been acquitted if the results. . .had been available prior to the defendant’s guilty plea. . .even though the results may not completely exonerate the defendant.

The change is one that is long overdue and provides necessary relief to those wrongfully convicted. According to the Bluhm Legal Clinic at Northwestern University School of Law, 165 Illinois inmates have been exonerated thanks to post-conviction testing of DNA and other forensic evidence. Many of these men and women were convicted based on eyewitness misidentification – according to the Innocence Project, nationwide 72% of inmates exonerated thanks to post-conviction DNA testing were convicted based on eyewitness testimony.

In addition to false convictions based on eyewitness misidentification, research has shown that many other innocent men and women plead guilty to crimes they did not commit. They do so for a variety of reasons, including:

police intimidation;
inhumane investigation tactics, such as withholding of food or sleep; or
fear of receiving a harsher sentence at the hands of an unfair or biased jury.

Others are the victims of unscrupulous tactics by the prosecution, such as withholding of evidence, or shoddy police investigative work, such as when the police fail to completely investigate a case because they feel they “got their man.”

Knowing that an untold number of innocent Illinois residents plead guilty to crimes they did not commit because of these and other reasons, Illinois State Senator Kwame Raoul sponsored the law specifically to address these inequities. Imprisonment for a crime they did not commit is bad enough – and not allowing them to have newly discovered DNA evidence tested to help exonerate them, based simply on the fact that they chose to plead guilty rather than face the uncertainty of trial, is piling injustice on top of injustice. Continue reading

October 14, 2014

Chicago Man Arrested in Cold Case Murder

by Law Offices of David L. Freidberg, P.C.

A Chicago man was arrested last week in connection with the 2009 disappearance and murder of his girlfriend. The woman disappeared in April 2009 after last being seen with the defendant. Here whereabouts were unknown until recently, when a 911 call to the Dolton Police Department reported a body in Little Calumet River. An autopsy positively identified the victim and determined the cause of death to be strangulation.

Defense of Cold Case Murder

Cold case murders are challenging for the prosecution – the passage of time causes both evidence and witness memories to fade. But these challenges are positives to the defense, as it makes it easier to cast reasonable doubt on the defendant’s guilt. Defense in these types of cases would involve attacking the credibility of both witness statements and any forensic evidence found in the case.

In cases such as this, where the victim was last seen with the defendant, the prosecution will attempt to persuade the jury that this fact implicates the defendant in her disappearance. But with no other evidence linking the defendant to the victim, this eyewitness testimony has little value and does not prove that the defendant was responsible for her death. It only proves that they were seen together. The defendant and the victim may have parted ways after they were last seen together, with the victim later being attacked by an unknown third-party.

Cause of death would also need to be examined by forensic experts hired by the defense. The coroner listed cause of death as strangulation. If the death was recent, we would attempt to determine if any marks left on the victim’s neck were consistent with the size and shape of the defendant’s hands. The passage of time makes this type of evidence unlikely, but it is still something that the defense would need to examine.

If the body was deteriorated to the point that no skin was left to examine, forensic experts may be able to determine the amount of force that was needed for the victim to be strangled, and from there estimate the approximate height and weight of the murderer. This evidence may also help to exonerate the defendant.

Forensic examination may also show that there is a possibility that damage to the neck occurred following death. Perhaps the victim was not a victim of murder. Instead, she may have committed suicide by jumping into the river, and her body then became tangled in some type of debris that could have caused injuries consistent with strangulation. This evidence would also exonerate the victim.

DNA evidence in this case would not be indicative of the defendant’s guilt. The two were dating, so one would expect to find his DNA on her. But if DNA of any unknown party was found on the victim, those persons would need to be identified in order to determine whether they could have been responsible for her death.

The defense would also look into whether there was anybody with cause to harm the victim. Did she – or perhaps the defendant – have a bitter ex-partner? Could she have been involved in drugs or some other illicit activity that led to her death? Could the defendant or the victim’s family have been involved in these activities, and she was killed by to send them a message? The backgrounds of the victim, the defendant and her close family and friends would all need to be considered to determine whether there are any other possible suspects. Continue reading

October 9, 2014

Rules of Criminal Procedure

by Law Offices of David L. Freidberg, P.C.

An Aurora man convicted of murder in 2009 will have a second chance at post-conviction relief after the Illinois Supreme Court ruled that a judge’s dismissal order was filed one day too late.

Illinois Post-Conviction Relief and People v. Perez

Ivan Perez was convicted of the 2004 murder of Francisco Reyes, and the conviction was upheld all the way to the Illinois Supreme Court. Perez then filed a pro-se (without representation) petition seeking post-conviction relief.

Post-conviction relief can be granted if the court finds evidence of a “substantial denial” of the defendant’s Constitutional rights in the proceedings that resulted in the conviction. Once the petition is filed, the trial court has 90 days to enter an order either granting or dismissing the petition.

The court wrote an order dismissing Perez’ petition as frivolous on the 90th day. However, the clerk of court did not file-stamp the order until the 91st day. Perez appealed the dismissal, arguing that it was not done within the 90-day period.

The Illinois Supreme Court agreed with Perez, and ruled that an order is “entered” not on the day the judge signs it, but the date it is file-stamped by the court clerk. Because of this, the trial court’s dismissal was not timely, and Perez is entitled to proceed to the second stage of post-conviction relief proceedings.

Illinois Rules of Criminal Procedure

The press and public often talk about criminals getting off on, or a conviction being reversed because of, a technicality. But these ‘technicalities’ are extremely important to ensure that every defendant gets a fair trial. This is especially important in cases where conviction can result in lengthy prison terms (Perez was sentenced to 60 years) or even death.

If you think of court as a game, then these technicalities are the rules by which the game is played. And legally, they are called just that – the rules of criminal procedure. Rules such as the defendant’s right to remain silent, his right to a speedy trial, the right to cross-examine witnesses, and even the prosecution’s burden of proving guilt beyond a reasonable doubt, are all in place to ensure that the game is played fairly.

Even with these rules, the key players try to cheat. Police fabricate evidence and use intimidation and harassment to obtain false confessions. Prosecutors withhold evidence that sheds doubt on the defendant’s guilt. Witnesses lie. Imagine how much more flagrant these behaviors would be if the rules of criminal procedure were not in place, and the players could act as they pleased.

The majority of the time, these so-called “technicalities” do not result in the defendant being acquitted or the charges against him being dismissed. Instead, as in Perez, the result is the defendant getting a second chance at the trial being done right. But it also means that the prosecution gets a second chance to gain a conviction as well. Most of the time, the outcome in the second trial is the same as the first – the defendant is acquitted and sentenced.

And sometimes, the defendant is innocent. Since 1998 the Center on Wrongful Convictions at Northwestern University School of Law has helped to exonerate 40 innocent men and women. These people spent time in prison for crimes they did not commit, many due to wrongdoing by law enforcement and prosecutors who believed they were right and didn’t want “the rules” to get in the way. These innocent men and women cannot get back the time they lost with their family and friends, or the time they lost building their career. They were traumatized not just by the false conviction and years of damage to their reputation, but by the horror of being in prison.

It is these innocent people that the rules of criminal procedure are in place to protect. Imagine how many more would be falsely imprisoned if the rules were not in place. Continue reading

October 7, 2014

Entrapment

by Law Offices of David L. Freidberg, P.C.

A Cook County inmate was charged with solicitation of murder for hire after allegedly trying to hire a hitman to murder a witness in his upcoming trial on charges of criminal damage to property, telephone harassment, and criminal trespass. The hitman was, in fact, an undercover officer.

Chicago Solicitation of Murder

A person commits the crime of solicitation of murder if he “commands, encourages, or requests” another person to commit the offense of first degree murder. The defendant allegedly offered to pay the undercover officer $3,000 – $4,000 to have the witness killed.

A solicitation charge means that the underlying crime was never committed. Instead, the defendant was merely making the first step toward committing it. So determining whether the solicitation actually took place requires a thorough examination of the circumstances surrounding the commission of the alleged crime. Questions to be asked when crafting a defense to a charge of solicitation of murder include:

Whether the ‘hitman’ initiated the subject of solicitation with the defendant. If the hitman initiated the conversation, it would show that the defendant never considered the idea of murdering the witness until he was approached.
Whether conversations about the ‘hit’ were conducted in a public or private setting. If the conversations were in public, it makes it more likely that the defendant had no intention of following through, because there would be plenty of witnesses to his actions. Instead, he may have been engaging in talk to make himself look tough in jail, or wishful thinking.
Whether the defendant had the means or ability to pay the hitman. If he did not, it would tend to show that he once again was just fantasizing and did not intend for the hit to take place.
Whether the defendant ever said, “I want you to kill this witness.” Anything less than a specific statement of intent, such as, “It would really help my case if he died” or “God, I wish he were dead so he couldn’t testify!”, could be interpreted to be a case of wishful thinking.
Whether the defendant ever specifically requested that the witness be killed, or whether he expressed a general desire for him to “be taken care of.” This type of statement could be interpreted to mean that the defendant simply wanted someone to scare the witness out of testifying.

Chicago Entrapment Defense

In these types of cases, it may also be possible for the defendant to successfully argue that the police entrapped him. Entrapment is an affirmative defense, which means that the burden is on the defendant to prove that he was entrapped.

A defendant is not guilty of the charged offense if he can prove that his conduct was “incited or induced by a public officer or employee…for the purpose of obtaining evidence for the prosecution of that person.”

Proving entrapment requires more than simply providing evidence that the officer provided the defendant an opportunity to commit the crime. Courts assume that most citizens will be able to resist the temptation to break the law. Instead, entrapment requires that the officer engaged in such egregious behavior that a normal, law-abiding citizen would be enticed to commit the underlying crime.

For example, in a case such as this, it would not be enough for the defendant to prove that the officer approached him and brought up killing the witness. It may be enough, however, if the officer continually approached the defendant, despite repeated statements that he did not want the witness killed. This would show that the defendant was initially unwilling to break the law, but caved after police badgering. Continue reading

October 1, 2014

Skokie Jewelry Home Theft

by Law Offices of David L. Freidberg, P.C.

An unidentified person allegedly stole jewelry from inside a home during a Skokie estate sale last week. The case is interesting because it raises a number of different issues that the prosecution will need to overcome if an arrest is made and charges filed, as well as many possible defense strategies to explore.

Proving Skokie Theft Case

At the outset, the prosecution faces an uphill battle in obtaining a positive identification of the alleged thief. In reference to the estate sale, individuals were no doubt going in and out of the home. Any forensic evidence found at the scene – such as fingerprints, clothing fibers, or other DNA evidence – cannot provide a smoking gun. Here, the suspect was “invited” into the home for purposes of the sale. Absent any forensic evidence tying the suspect to the scene, an eyewitness identification is strongly in doubt. With the family talking to dozens of people while trying to make sales, without any distinguishing characteristics on the suspect’s part, it will be difficult for eyewitnesses to testify with certainty that the suspect was present in the home.

Even if caught – for example, if a local pawn shop reports purchasing the stolen jewelry – it is difficult to prove beyond a reasonable doubt that the suspect was the person who stole the jewelry. Without a positive identification or any forensic evidence tying him to the scene, there are any number of possible reasons the suspect could have come into possession of the jewelry. He could have purchased it from a different pawn shop, received it as a gift, or even found it discarded in a trash can or on the side of the road.

Skokie Defense of Theft

From the defense side, there are several issues to explore regarding the estate sale itself that could help cast doubt on the suspect’s guilt:

Was there a “free” table at the sale? If there was, it raises the possibility that another attendee, or even a family member, mistakenly laid the jewelry on that table, leading the suspect to believe it was free for the taking;

How many people were in charge of handling transactions? If there was more than one person handling sales, it is possible that the suspect actually paid for the item. Lack of communication between salespeople could cause the sale to not be properly recorded, thus leading to a misunderstanding that the item was stolen;

Do any of the people running the estate sale carry a criminal history of theft or similar crimes themselves? It is possible one of the salespeople simply pocketed the money from the sale and reported it as stolen to cover his tracks;

Is there animosity among the family members set to inherit the estate? Proceeds from the estate sale are deposited into the estate and used to pay estate bills before they are ultimately distributed to the heirs. If there was a disagreement amongst family members as to who should receive the allegedly stolen piece of jewelry, a decision of the majority of the heirs would win. A disgruntled family member who wanted the jewelry may have pocketed it and concocted the theft story to deflect blame.

Each of these scenarios would cast serious doubt on the defendant’s guilt, and are all avenues that David L. Freidberg would explore in working to get the charges dropped or the case dismissed. Continue reading

September 29, 2014

Corporal Punishment of Illinois Children: Child Abuse or Parent’s Prerogative?

by Law Offices of David L. Freidberg, P.C.

The recent indictment of Minnesota Viking’s running back Adrian Peterson on charges of child abuse, which stemmed from his admission that he disciplined his young son with a switch, is raising questions over just what constitutes corporal punishment, and when it crosses the line from discipline to child abuse.

Chicago Spanking Laws

Under Illinois law, it is considered child abuse if a parent “inflicts excessive corporal punishment” upon his or her child. The use of the qualifier “excessive” makes clear that a Chicago parent is allowed to use corporal punishment when disciplining his or her child. But the law fails to define what pushes the corporal punishment, which may include spanking, hitting, pinching, slapping, or any other type of action with the intent of inflicting pain, from permissible to excessive.

The Illinois courts have dealt with the issue of corporal punishment at various times, consistently ruling that “parental rights of discipline are limited by a standard of reasonableness.” But they cite no examples of what constitutes unreasonableness.

How, then, is a parent to know whether discipline of a child will result in criminal charges? Unfortunately, they cannot, since there is no clear cut answer. What is reasonable today may be unreasonable tomorrow, depending on society’s changing views of corporal punishment. It can even vary depending on the type of punishment inflicted, the region, and the terms that are used to describe the punishment.

Cases such as these highlight the importance of obtaining experienced legal counsel. The sole basis of whether a parent’s physical discipline of his or her child qualifies as excessive under the law comes down to a reasonableness standard.

Defending against child abuse charges that stem from corporal punishment requires the ability to not only thoroughly examine all the circumstances to make a case for reasonableness, but also the ability to make a jury understand why the parent believed his or her method of discipline was reasonable. It also requires an examination of medical evidence regarding any alleged injuries, as well as photographs taken following the incident.

Whether the punishment is reasonable will rest in part on the severity of the discipline and whether it caused any injury. That requires a careful examination of any photographic evidence and testimony from qualified medical experts on the lasting impact, if any, from the discipline.

Photographs taken immediately after the incident may show red marks or other visible evidence of the physical discipline. But any type of physical contact can leave an imprint. Instead, the real question is whether that imprint remained, or whether it faded away shortly after the incident occurred. Physical marks that disappear shortly after the discipline would disprove excessive use of corporal punishment. If there are no follow-up photographs, medical testimony from David L. Freidberg’s team of medical experts could help jurors understand that an “injury” that looks bad in a poorly taken photograph actually faded away in an hour or two.

Eyewitness testimony is also important in disproving the excessive nature of the discipline. For example, if the child was running around playing like normal shortly after the punishment, as opposed to limping, that would go toward disproving that the punishment was excessive. Continue reading