One of the most confusing areas of criminal law is the area of murder versus manslaughter. Both murder and manslaughter involve the Defendant willfully killing another person. Notably, self defense is a defense to murder and manslaughter.

First degree murder is the classic fact scenario where the Defendant plans to kill someone and executes on that plan. It can be a plan that took years to go into effect or one that only took five minutes. If a mobster sees another mobster speaking to police and assumes he is cooperating with them and kills him on the spot that is first degree murder. He planned to kill the individual and followed through with the plan to the point of killing.

Second degree murder is when the Defendant kills someone without planning it out. For example, two neighbor’s have a dispute. They decide to discuss it. In the middle of the discussion one person gets angry and shoots the other. This would probably be considered second degree murder, because although he killed the person the Defendant did not go into the meeting planning to do so.

Manslaughter is trickier still and presents a difficult analysis for the jurors. In order to be found guilty of manslaughter and not murder, there must be evidence which shows that there was some sudden event which caused the Defendant to lose his normal reasoning and kill the person. The classic law school example is the man who comes home to find his wife in bed with this best friend and he kills his best friend or his wife or both. In that situation the “heat of passion” caused the individual to lose his reasoning and kill the person. The law requires that there be evidence that: (1) there was a sudden quarrel or the killing occurred in the heat of passion; (2) there was no planning or a reckless disregard for human life amounting to malice; (3) the Defendant acted rashly and under the influence of intense emotion that obscured his reasoning and judgment; (4) the provocation would have caused a person of average disposition to act rashly and without due deliberation.

Notably, the California Supreme Court recently held in People v. Beltran (2013 DJDAR 7016) that the test is not whether a reasonable person would have killed but whether it reasonable for the Defendant to have killed under that condition or provocation. As you can see, deciding whether the Defendant committed manslaughter versus murder is not an easy decision for the jurors. Yet few would disagree that a lesser crime then murder should be available to Defendants acting out of extreme provocation instead of those planning to kill or those acting knowing that their actions could likely result in death.

The Orange County District Attorney has been resolving criminal cases by having the Defendant give their DNA in exchange for dismissals of usually minor cases.

This program in Orange County has only been in effect for the last couple of years and had generally been very beneficial to Orange County Defendants facing minor criminal charges such as ‘hit and run’ and ‘petty theft’ in that they can get the case dismissed by offering to give their DNA.

DNA of course refers to Deoxyribonucleicacid which is a macromolecule that exists in every living thing. Because DNA is unique to each person it is used by law enforcement as a means of identifying individuals who may be involved in a crime. If police find a strand of hair, drop of blood or other bodily substance at a crime scene they can test the substance against DNA samples in nationwide data bases. If the person who left the DNA at the crime scene is in the data base then the police will have a ‘hit’ and can investigate that person as someone of interest. Law enforcement can use the presence of DNA to put a particular person at a particular place or in the case of sexual assault cases, the DNA present in semen or other bodily fluids can be used to determine who committed the crime.

DNA has proven to be a very useful tool for law enforcement, as such Tony Rackauckas the Orange County District Attorney, implemented the DNA for dismissal program as a way to build up a local Orange County DNA base which will interface with national data bases.

Some people are hesitant to give their DNA for fear of being mistakenly accused of a crime by some glitch in the system. However, experts say that DNA is like a fingerprint only much more reliable in its uniqueness to each individual. In addition, it is rare that an individual is charged or convicted with DNA alone; usually other evidence is produced to show the likelihood of the individual being present at the scene in addition to the DNA.

DNA has most famously been used to exclude people from having committed crimes. The media reports numerous instances where individuals who were convicted of crimes and already served long sentences are suddenly freed because DNA testing showed that someone else was the culprit. For example, evidence from rape cases that occurred before DNA testing was available can be subject to DNA testing if the court allows the matter to be reopened. Many individuals have been freed because of DNA testing done after the person was sentenced and convicted.

Everyone should be advised however, that once their DNA is in the data base and they subsequently commit a crime their chances of being discovered are much greater.

This court came to be because it is well recognized now that these individuals are facing charges and dealing with the lasting affects of combat overseas. Most participants have been diagnosed with PTSD and/or traumatic brain injury. Counseling is provided by the VA and mentor volunteers as well. Other officials involved in the court are from the U.S. Department of Veterans Affair’s Justice Outreach Program, probation officers and representatives from the District Attorney’s Office. Upon completion charges can be reduced or dismissed.

The system is designed into four different phases with regular court appearances, counseling sessions, and drug testing. There are 90 courts in the country that have adopted such a system.

Here you can watch a CNN video that features Judge Wendy Lindley in Veteran’s Court.