Example of burdens of proof in a criminal case | Denver Criminal Defense Attorney

It’s a warm summer night and a homeowner has phoned 911 to report a burglary.  The homeowner says the burglar was wearing a mask, sweatshirt, and was carrying a bag.  The homeowner reports a missing DVD player his wife’s necklaces.

Minutes later a police officer observes a man running just two blocks from the homeowner’s address.  The man is wearing a dark sweatshirt and sweatpants, there is mud on his pants and shoes, and he has a bag over his shoulder. The officer now has reasonable suspicion to stop and identify this person.  However, there is not yet enough evidence (probable cause) to make an arrest.

The officer stops and questions the man and learns that he does not live in the area.  The officer observes that the man is visibly nervous and is sweating.  The officer looks inside the bag and sees electronics and jewelry.  The officer now has probable cause to believe that a crime has been committed and arrests the man.

A grand jury is later presented with the case.  If they believe that there is probable cause cause, then they will indict the case and send it to the district court.

In the district court, a jury is empaneled to hear the evidence.  To convict, the prosecutor must present enough evidence to prove the case beyond a reasonable doubt.

A brief overview of burdens of proof | Denver Criminal Defense Attorney

Burden of proof is essentially the amount of proof needed to prove something.  The amount of proof changes depending on the type of case.  For example, to convict someone of a criminal offense and strip them of their freedom, you must have proof “beyond a reasonable doubt.”  This is the most proof required in any legal case—as it should be.

On the other hand, for a civil case where money is at issue, you need a “preponderance” of the evidence.  This is essentially enough evidence to tip the scales of justice only slightly.  Put another way, you will have a preponderance of the evidence if you have 51% of the evidence and the other side has 49%.

In between criminal and civil cases is “clear and convincing evidence”.  This is the amount of proof needed in child custody cases.  It’s less than the proof needed to take someone’s freedom away, but more than needed to win a money judgment against someone.

Burden of Proof | Denver Criminal Defense Attorney

Attorneys sometimes glaze over certain terms without making sure you fully understand them.  “Burden of proof” is one of those, and it will undoubtedly arise during your case.  This is one phrase that you must understand because can change depending on the type of case or even the proceeding.  The following is a brief overview of burdens of proof.

Criminal cases are more complicated

Criminal cases have three standards of proof: reasonable suspicion, probable cause and beyond a reasonable doubt.

Reasonable suspicion is the amount of evidence an officer needs to stop someone on the street and ask them questions.  For this, the officer must be able to articulate that a person has been, is, or is about to commit a crime.

Probable cause is the amount of evidence an officer needs to make an arrest.  This means that the officer must have probable cause, which is a reasonable belief that the person has committed a crime. Probable cause is not enough evidence to convict.  It is only the amount of evidence needed to make an arrest.  Probable cause is also the amount of evidence that a grand jury needs to indict a case.  This is why many cases are indicted, but fewer are able to be proven to a jury.

Beyond a reasonable doubt is the amount of evidence a prosecutor must present to a jury to obtain a conviction at trial.

Knowledge Center:

Example of burdens of proof in a criminal case.

Levels of proof chart: The following chart is helpful in explaining the levels of proof.

Suspected murderer receives 5 years on unrelated firearms charge | Denver Criminal Defense Attorney

The Denver Post is reporting that on March 11, 2010, Shun Lamar Birch was sentenced to 5 years in the Bureau of Prisons, by United States District Court Judge Wiley Y. Daniel. This case stemmed from a firearms charge alleging that Birch, a convicted felon, was illegally in possession of two guns. The weapons were found at his Aurora residence.

Birch is also charged with the December 2006 murder of Kalonniann Clark, a prosecution witness in an unrelated case.  That case is currently set for trial in state district court.

Birch did not hire an attorney from 5280defense.com.

Parole | Denver Criminal Defense Attorney

Parole is not probation

Parole is the supervised release of a prisoner before the completion of their prison sentence.  Parole should not be confused with probation.  A person placed on parole serves the remainder of a sentence outside of prison, whereas probation is given instead of a prison sentence. 

Nonetheless, many of the conditions of parole mimic those of traditional probation.  A parolee will be required to report to a parole officer, maintain steady employment, avoid drugs and alcohol, or any other conditions required by the state.

Violations of parole conditions may result in revocation of parole status.  This means that a parolee will be ordered back to prison to serve the remainder of the sentence behind bars.

There is no parole in the federal system

A prisoner must serve the entire length of any federal sentence imposed, minus any “good-time” received by the Bureau of Prisons.  After a sentence is completed, a prisoner will be placed on supervised release for a period of time. 

Supervised release is not probation or parole; however, the judge will impose specific conditions of supervised release that are similar to probation and parole.

Violations of supervised release are treated as new offenses.

What is a writ of habeas corpus? | Denver Criminal Defense Attorney

Habeas corpus is a method for a defendant to challenge the legality of confinement.

“Habeas corpus” literally means “you shall have the body,” and that is exactly what happens when this writ is requested.  The judge orders the warden of a prison or jail to produce a defendant to the court with proof of authority.  The judge will then determine whether the confinement is legal.

What is a writ? | Denver Criminal Defense Attorney

A writ is a court order directed from a higher court to a lower court or government official to comply with specific instructions.  A writ is usually only permitted when a defendant has exhausted all other remedies.  This means that all appeals must be attempted prior to seeking a writ.  Often, defendants use a writ as a means to raise issues not contested in an appeal such as ineffective assistance of an attorney or prosecutorial misconduct. 

Writs can be very complex and typically involve very specific legal details that were not raised during the original appeal.  For this reason, you need a seasoned attorney to assist you in requesting a court to issue a writ.

Will I win my appeal? | Denver Criminal Defense Attorney

Appellate courts review a trial court case for errors that may have been committed.  Appellate courts generally respect the decision of the lower court, and only step in if there was an error that significantly contributed to the outcome of the case.  Quite often, errors that are found will be called “harmless.”  In those cases, the appellate court will not disturb the lower court case.  However, in situations where the error is not considered “harmless” the entire case will be reversed.

While appeals can difficult to win, a reversal can lead to a new trial, new sentencing hearing or even a complete dismissal of the charges!

What is an appeal? | Denver Criminal Defense Attorney

An appeal is a motion written by an attorney that asks a higher court to review your case.  The higher court is called an appellate court.  The appellate court reviews the motion filed the attorney, and any responses filed by the other side. 

Sometimes, the appellate court will ask for oral arguments to be made.  This is a spoken presentation that an attorney will make in the court.  It is very different from a trial in that the presentation is made directly to the appellate judges, no witnesses are presented, and the judges frequently pose questions for the attorneys.

Once the motions are submitted and the court has heard any oral arguments, it will take the case under advisement.  At a later date, the court will issue a written opinion on the matter.  The opinion is generally a lengthy report from the court reciting its understanding of the facts, the relevant law applicable in the case, an analysis of the law and the facts, and the ruling.

Unfavorable opinions can often be appealed to a higher court, such as the Supreme Court of a state and the United States Supreme Court.


The Colorado Court of Appeals is usually the first court that reviews cases from district courts, probate courts and juvenile courts.  The decision of the Colorado Court of Appeals is final unless the Colorado Supreme Court agrees to review the case.

The Colorado Supreme Court is referred to as the “court of last resort” in Colorado’s state court system.  This means that this is the last court to review a state case (unless the United States Supreme Court agrees to hear an additional appeal).  The Colorado Supreme Court reviews cases from the Colorado Court of Appeals.  On occasion, the Colorado Supreme Court will hear cases directly regarding a lower court’s decision.


The 10th Circuit Court of Appeals is generally the first reviewing court for federal convictions.  This court is based in Denver, and hears all federal appeals from federal courts located in Colorado, Oklahoma, Kansas, New Mexico, Wyoming, Utah, and the portions of Yellowstone National Park that extend into Montana and Idaho.

The United States Supreme Court is the “court of last resort” for federal appeals.  The Court is comprised of nine justices who generally restrict their review to cases involving a conflict of law in the United States Courts of Appeals.  The Court is asked to review thousands of cases each year, and only agrees to examine a few.

Appeals & Post Conviction Writs | Denver Criminal Defense Attorney

If a jury returned a “guilty” verdict against you, now is the time to act.  There are several different remedies available to you: 1) ask the judge to overturn the jury’s decision and enter a not guilty verdict; 2) ask the judge for a new trial; or 3) appeal the decision to an appellate court.

The appellate process can be slow and may seem tedious.  However, it is a very necessary and helpful remedy for those who have been wrongfully convicted.

What is an appeal?

Will I win my appeal?

What is a writ?

What is a writ of habeas corpus?