One of the challenges for the defense in these types of cases is the new admissibility of extremely prejudicial “gang evidence.”
Typically, the prosecution cannot admit evidence that the defendant is a bad or violent person. This character evidence is seen as unfair to the defendant because even if he or she has committed one crime in the past, it does not mean he or she committed the crime charged in the current case. In a gang case, the prosecution is allowed to admit evidence showing that the defendant participates in gang activity. An expert is allowed to discuss with the jury all the crimes and activities of other members in that gang. This leads to severe prejudices against the defendant and causes real problems in formulating a defense.
Gang charges and allegations substantially increase the amount of prison time defendants will have to serve. A typical gang allegation can add 5-10 years onto a sentence even for offenses which otherwise carry minimal jail time. In a murder case, a gang allegation can add 25 years to the sentence.
The law on gangs has also expanded the definition of a conspiracy in California. Traditionally, a conspiracy occurs when two or more people agree to commit a crime and commit at least one overt act in furtherance of that crime. Based on a relatively new law, the government is trying to expand this definition. Now, they argue, even where no agreement takes place, a conspiracy exists if a person is an active participant in the gang; has knowledge of the gangs illegal activities; and promotes, furthers, assists, or benefits from any crimes committed by the gang.
Gang cases are particularly difficult because witnesses rarely want to cooperate. Cooperation with law enforcement or defense counsel can be seen as snitching. Snitching is obviously not allowed in a gang and can result in the witness being threatened, beat up, or killed. This reality causes both sides to have limited access to information during the investigation of the case.
Read About Gang-Related Criminal Cases We’ve Defended →